131 N.Y.S. 903 | N.Y. App. Div. | 1911
Lead Opinion
The order denying the motion for reargument is not appeal-able, and the appeal therefrom is, therefore, dismissed, but without costs.
The purpose of this action was to procure the cancellation of a deed, and the record thereof, to the premises known as 121 Worth street, in the city of New York, executed by the husband of the defendant Oonlon to her, on the ground that it was a forgery. She appeared in the action by Marsh & Bennett, but the date of their appearance for her is not given. It appears, however, that the action was pending in the month of April, 1910, for an agreement in writing, recited to have been made on the blank day of April of that year, was executed by the defendant Oonlon and by Marsh, one of the firm of her attorneys, who, it was recited, had been retained as her attorney to defend the action, “and to conduct such other proceedings in connection therewith as he. may deem necessary or advisable to protect her and to secure to her her rights and title in' and to” the premises, and delivered to the appellant, whereby the appellant was retained “ to co-operáte ” with said Marsh “to a final termination” in the defense of this action, and in the prosecution of an action then pending, which had been brought by the defendant Oonlon against the plaintiff for ejectment with respect to the same premises, and to recover rent therefor, and in making a motion in another action entitled Jones v. Kelly, which it was deemed might have some effect on the defendant Oonlon’s rights in the preinises. The agreement recites that the defendant Oonlon had theretofore agreed to pay said Marsh the sum of $4,000 and the
On the 9th day of June, 1911, an order was entered on cón
We are of opinion that the court erred in deciding that the ' appellant had no lien on the papers in his possession. Although the appellant was not the attorney of record,'he virtually had charge of the case with the knowledge and consent of the defendant Conlon, in effect as such. Not being attorney of record, however, he had no statutory or charging lien by virtue of the provisions of section 66 of the Code of Civil Procedure, as revised by section 475 of the Judiciary Law (Consol,. Laws, chap. 30; Laws of 1909, chap. 35); but he does not claim a charging 'or statutory lien, nor does he even make any claim, for services. He merely insists that he is entitled to be reimbursed for the disbursements necessarily incurred, or incurred by authority of the defendant Conlon before he can be deprived of the custody and possession of the papers, including the exhibits in the action. If there were no action pending, ;t is perfectly well settled "that he Would have a lien, regardless of the statute, upon any papers which lawfully came into his possession by her authority for any services rendered to his client, of which he' could not be deprived without payment or security for payment for his services.. (Matter of H-, an Attorney, 87 N. Y. 521; Bowling Green Savings Bank v. Todd, 52 id. 489; Ward v. Craig, 87 id. 550, 560.) It has not been adjudged here that the appellant has been guilty of any breach of his obligation to the client by which he has forfeited his lien.
The learned counsel for the respondent attempts to sustain the order upon the theory that the appellant was not employed as an attorney, but only as counsel in the action, and that as such he has no lien. If, as contended by the appellant, the entire charge and control of the case was turned over to him without a formal substitution, he has good ground for contending that" he was in fact employed as attorney, although he did not become attorney of record; but we do not deem it necessary
We are, therefore, of the opinion that the matter should .be remitted to the Special Term, to be decided on the merits on such further proof by affidavit as either party may present, or by reference, as the court may deem necessary, and that at the same time an application for restitution may be made, and if it shall be determined that the appellant has incurred any disbursements for which the defendant Conlon is liable, that the papers be ordered returned to him and that he be adjudged to be entitled to retain the possession thereof until the amount for which the defendant Conlon is liable, as determined by the ■court, shall be paid, or until security therefor shall be given, with ten dollars costs and disbursements of the appeal to appellant.
Clarke and Miller, JJ., concurred; Ingraham, P. J., and Scott, J., dissented.
Dissenting Opinion
(dissenting):
I dissent. The relations between the appellant arid Mrs. Conlon are defined by the agreement signed by herself and her attorney Marsh, and dated April, 1910. It is true that the appellant did not sign the paper, but he expressly alleges in one of his affidavits that he did in April, 1910, make a con
I do not understand that counsel as such has ever been held to be entitled to such a lien. There are many cases which protect an attorney’s lien, but that is not what we' have to deal with here. While the distinction between attorneys or solicitors and counsel or barristers is not now recognized in this State as constituting different grades in the profession, the distinction, still exists with regard to the services to be rendered and the relation held towards clients when, as in Mrs. Conlon’s cases, both an attorney and a counsel are retained. One distinction which certainly existed at common law, and which L believe exists to-day, is that an attorney, as such, has a retaining lien
Ingraham, P. J., concurred.
Appeal from order denying motion for reargument dismissed, without costs. Matter remitted to Special Term for decision,, as indicated in opinion, with ten dollars costs and disbursements of appeal to appellant. Order to be settled on notice.