Fox v. Fox

24 How. Pr. 409 | N.Y. Sup. Ct. | 1863

Bockes, Justice.

It. is well settled now that an attorney

has a lien on the judgment, obtained by him for his client, to the extent of his claim for services and disbursements in the action. To that extent he is to be deemed the equitable assignee of the judgment.

The law is so declared in Rooney agt. The Second Avenue R. R. Co., (18 N. Y. R., 368.) There are many other cases to the same effect in this court. (20 How., 39; 16 How., 160-173; 12 How., 136; see also 9 How., 16, and 14 Abb., 229, in N. Y. common pleas.)

The lien exists, too, whether the amount of the attorney’s compensation is agreed upon, or depends upon the quantum meruit. (See above cases.)

. The question, then, is: .What is the amount to which the attorney is entitled for services and disbursements? for when that is determined, the cáse is relieved from all difficulty as regards his lien.

1. The attorney is entitled to such sum or amount as shall have been agreed upon between him and his client. This was decided in Rooney agt. The Second Avenue R. R. Co., supra. It was there held that the compensation and lien was a subject of agreement between the attorney and client, and might be more or less in amount than the allowance for services specified in the Code. Judge Harris says, that the effect of the Code is “ to leave the attorney free to agree with his client for a greater or less amount than that which he may recover, according to circumstances.” Judge Comstock says, in the same óase, that since the Code the compensation of the attorney is left “ to the agreement of the parties, express or implied.” This being so, it follows, according to the above authorities, that the agreement, by determining the amount of compensation, also determines the extent of the attorney’s lien. There can be no difficulty, then, in a case where the amount the attorney is to receive is agreed upon, and stands uncontradicted. He has a lien on the judgment for such amount, and may enforce it by taking the proper steps for that purpose. Payment of the judgment to any other person after notice of the lien will be of no avail against his right to enforce it for the amount of'his claim.

2. An attorney is entitled, on a general retainer in a cause, without any agreement fixing the measure of his compensation, to be remunerated according to the allowance for services and disbursements specified in the Code, This is decided in Haight agt. Holcomb, (16 How., 113.) Perhaps this was not actually adjudicated in Rooney agt. The Second Avenue R. R. Co., but the principle was advanced with the apparent approval of the court. Judge Harris (page 311) says: “ In the absence of any agreement on the subject, I suppose the sum recovered by the party as an indemnity for his expenses would be the measure of compensation allowed to the attorney. ■ This, then, would be the extent of his lien.”

On this point, the two cases cited are not at all in conflict. On another point, it seems to me, they are not in entire consonance. Still, the former case is cited by Mr. Justice Harris, in his opinion in the latter case, without intimating any point of difference whatever. I think it plain, however, that the main question, decided in Rooney agt. The Second Avenue R. R. Co., is in conflict with .that part of the decision in Haight agt. Holcomb, whereby it is decided that the attorney’s lien is in all cases restricted to or measured by the taxable costs. As was stated above, it may be more or less, in case the parties see fit to make an agreement in regard to the compensation; but it' seems that the case of Haight agt. Holcomb is not overruled, in so far as it decides that the attorney’s lien, in the absence of any agreement, is restricted to what appears as .costs on the judgment roll. His general retainer raises an implied promise to pay the fair value of the attorney’s services, which Judge Harris supposes would be the sum authorized by law to be recovered by the party as an indemnity for his expenses in the action.

3. If it be agreed between the attorney and client that the attorney shall be entitled to a fair and reasonable compensation beyond, or over and above the taxable costs, then the lien will attach to the judgment to the extent of the compensation thus stipulated for. This, I am aware, is in conflict with the decision of Haight agt. Holcomb; but I understand this proposition to be maintained as sound law in the case cited in the court of appeals. (18 N. Y. R., 368.) It is there distinctly stated that the attorney may agree with his client as to how much he shall receive for his services, and may thus fix beforehand the amount for which he shall have a lien upon the judgment when recovered. It was supposed by the court in Haight agt. Holcomb, that no lien could be maintained, because of the indefiniteness of the ag'reement as to the amount of compensation; and for the further reason that there was no short remedy by which the attorney could determine the amount of his lien. But there is no difficulty in settling the amount and in having it declared a lien on the judgment. If there be no short way of accomplishing this, there remains the usual way by direct action for that purpose. Indeed, this seems to me the true mode of proceeding, when there is a dispute as to what the contract is, or in regard to the amount which the attorney is entitled to demand under it, and also when" the amount of compensation is by express agreement made to depend on the value of the services and unliquidated.

It was held in Haight agt. Holcomb that in case of dispute on these points, there could not be a compulsory reference.

The decision of that case in this regard has not been overruled. It is a general term decision in this court, and I am unquestionably bound by it. The New York common pleas held otherwise. (14 Abbott, 229.) But I must, at special term, follow the decision in our own court, made at general term, in preference to that.

There seems to be a difficulty in proceeding by motion to try matters in controversy between one of the parties to an action and his attorney. Those matters are not in issúe in the cause, nor do they bear on the issues therein, nor do they relate at all to the practice or conduct of the cause as between the plaintiff and defendant. The proceeding, in all its material bearings, is by the attorney against his client; yet how is the client (the defendant in this case) before the court on this motion ? The motion papers were not served on him, nor has he appeared on the motion. True, his affidavit is read, but it is read by and in behalf of the plaintiff. This motion is by the attorney in hostility -to the interests of the client. It follows that he has a right to be heard, and I think he may insist on being- heard in the usual mode, by which the'rights of parties are determined. A claim is made against him as to what sum or amount he shall pay his attorney. If he admit his liability, in other words, if there be no controversy as to the terms of the contract, nor as to the amount he ought to pay under such contract, the difficulty might be settled on motion. Even if he had been served with the motion papers, as regards him, it would then be a motion to determine his liability, or, what is equivalent, a claim against him for services, by a reference without action. This cannot be done. An attorney can.no more determine his claim for services by a reference without action, than could any other laborer for hire.

There is no difficulty in securing the lien by direct action for that purpose against all parties, and this is the course to be adopted when there is a controversy as to what the contract is, or in regard to the amount payable under it.

It follows from the above considerations that the motion in this case must be denied. In my judgment, the proper-way for the attorney to proceed, with a view to a determination of the matters in controversy in a case like this, is by an action to determine the amount or extent of the lien, and have a decree declaring the judgment subject to the lien,'and for liberty to issue execution therein for the amount due him by, virtue of his contract with his client. Then issue may be framed and a trial had in a way to secure the rights of all parties.

Ari objection is made to the affidavit of the defendant, L. M. Fox, on the ground that it is not duly authenticated. But I do not deem the objection of importance, for even if the affidavit should be excluded the motion should be denied, if I am correct in the conclusions at which I have arrived on the law and practice.

The motion will be denied without costs, and without prejudice to any action or other proceeding to attain the end sought by the motion.

.1 do not understand that there is any objection to paying the costs and disbursements taxed and included in the judgment, except the referee’s and witnesses’ fees, which were paid by the defendant himself and not by the attorney. Indeed, the plaintiff has offered to pay such costs and disbursements, and still holds the amount ready for the attorney whenever he will accept that amount. To this extent the plaintiff admits and recognizes the attorney’s claims and lien. The motion was, of course, unnecessary as regards those costs and disbursements. I presume the attorney can have this amount by calling for it, or if payment should be refused he could issue execution therefor, without any order or application to the court.

Motion denied.