124 N.Y.S. 301 | N.Y. App. Div. | 1910
Appeal by the defendants Helen Yillard Bell and James W. Bell, appearing • specially for the purpose, from an order denying a motion to vacate an order directing that the service of the summons herein be made upon said defendants Bell by publication, or by personal service without the State. The motion to vacate was based upon two grounds, first, that the complaint herein does not establish a sufficient cause of action against the defendants to be served, and, second, that the papers upon which- the order was made were insufficient.'
The complaint alleges that plaintiff is an attorney at law; that the defendant Helen is the only daughter of the late Henry Yillard, and the defendant James W. Bell is her husband; that Henry Yillard and his wife, Eanny Garrison Yillard, on or about October 19, 1884, jointly executed a certain irrevocable trust to William Lloyd Garrison, as trustee, whereby they transferred to said Garrison as' trustee all their right, title and interest to one hundred and fifty-six shares of the Evening Post Publishing Company, of the par value ■of $500 each, to pay the income of seventy-six shares to the defendant Fanny Garrison Yillard during the term of her natural life, and upon her death to divide said seventy-six shares into as many parts
That after the consummation of said agreement for services to be rendered by him as such counsel as aforesaid, and appropriating and using the information ■ given to her by the plaintiff as to the existence of said deed of trust, the said Helen Yillard Bell, on or about May 15, 1905, commenced' abaction, by the said Mumford as her attorney in said action in equity, demanding that said deed of trust be declared a valid and existing trust and that the said Helen be declared, to be entitled to her beneficial interest as set forth in said deed of trust and to the actual ownership of twenty-six and two-thirds shares of said stock from- the date on which she attained the age of twenty-four years and all the income and profits accruing bn said stock from October 19,1884; that Garrison, the trustee, account to her and that he be declared to have been récreant in the trust confided to him and be. removed as such trustee, and that the defendants Yillard be directed-to account to her, etc.; that the defendant in said action served an amended answer putting in issue all the material averments of the plaintiff in that action ; that, said action. was never brought to trial, .but on or about the 28th of June, 1906, the said action was compromised and settled by the parties thereto without the knowledge or consent of the plaintiff; that it was provided by the terms and provisions of said compromise and settlement, reduced to writing and duly executed, that the sum of $5,000 cash should be paid- to the said Helen, and the said Fanny, Oswald and Harold Yillard, defendants in said action, conveyed and delivered to Harold Garrison Yillard, to and for the use of said Helen, the following securities (enumerating them), making a total of said bonds and stock $40,700; that the said parties also agreed to convey and did convey to Harold Garrison Yillard, as agent for the said Helen, the following securities (enumerating them),, making a total value of said stocks $46,175; that the same persons transferred and delivered to the said Harold, as agent for the said James W., husband of the defendant Helen Bell, securities (enumerating
The complaint sets up a supplemental agreement as a part of said compromise, with reference to further shares of stock subject to the claim of the plaintiff for his services twenty per cent of the income, and that such stocks are of the value of $43,650. On information and belief the plaintiff further shows that the defendant Helen and her husband are not residents of the Hnited States and have not been for many years last past, but are aliens, residents of and domiciled in Dresden, Saxony, Germany; that they are pecuniarily irresponsible, except for such interests as they may have under the said agreement of settlement and compromise and under said agreement between Harold Garrison Villard and the defendant Knickerbocker Trust Company of June 22, "1906, and said agreement between said defendant Helen and her husband and Fanny, Oswald and Harold Villard of May 27, 1907; that the said defendants Helen and James Bell have little or no property which could be reached by execution or otherwise to satisfy a money judgment of the plaintiff against them, and that they are in receipt of substantially no income
. In Grant v. Cobre Grande Copper Co. (193 N. Y. 307) the court said: “ Section 439 provides that ‘ The order must be founded upon a verified complaint, showing a sufficient cause of action against the defendant to be served, and proof by affidavit of the additional facts required by the last section.’ The reversal of the Appellate Division appears to have been based upon the latter provision of the Code and upon the-ground that the complaint filed in. this action does not state a sufficient cause of action against the Cobre Grande Copper Company. It is not our practice upon motions of this character to
In Paget v. Stevens (143 N. Y. 172) the court said: “ This language [referring to Code Civ. Proc. § 439] does not mean simply a complaint which would withstand a demurrer based upon the ground that it did not state facts sufficient to constitute a cause of action. The cause of action which is sufficient is one against tlie defendant of which the court can take cognizance. In this case it must be one of which the court has jurisdiction (as to defendant Charles G. Stevens) upon the assumption that he is a non-resident. This meaning lias been adjudged to be the correct one in Bryan v. University Pub. Co. (112 N. Y. 382, 386).”
Certain other cases were collected in the opinion of this court in Grant v. Cobre Grande Copper Co. (126 App. Div. 750). McLaughlin, J.’s language in Montgomery v. Boyd (60 App. Div. 133) was quoted: “ So far as we have been able to discover, it has been uniformly held that in order to justify an order directing service by publication, or personally without the State, the complaint upon which the order is based must show that the plaintiff has a cause of action.” And while our view of the complaint in the Grant case did not-prevail, the principle involved and stated in the Paget case was not overruled. We have here set forth an action in equity to assert and establish a lien based upon an alleged contract, that if the plaintiff gave certain information upon which Helen Bell could institute and maintain and succeed in a suit, she would pay to plaintiff twenty per cent of the results obtained by her under the provisions in her behalf in the deed of trust. Obviously this is not an attorney’s lien. Section 475 of the Judiciary Law (Consol. Laws, chap. 30 ; Laws'of 1909, chap. 35) provides : “ From the commencement of an action or special proceeding, or the service of an answer containing a counterclaim, the attorney who appears for a party has a lien upon his client’s cause of action * * * and the lien can not be affected by any settlement between the. parties before or after judgment or final order.” -Plaintiff never was Mrs. Bell’s attorney. The complaint alleges that George D.
Ho lien is given to counsel. It is- confined to attorneys who have ' appeared.’ (Brown v. Mayor, 9 Hun, 587.) If no attorney’s lien is stated, there is no other kind of a lien set up by the allegation's of the complaint. There was no equitable assignment. In Donovcm v. Middlebrook (95 App. Div. 365) Mr. Justice McLaughlin said: “ To constitute a valid assignment there must be a perfected transaction between the parties intended to. vest in the assignee a present right in the thing assigned. An agreement to pay a certain sum out of,'or that one is entitled to receive from, a designated fund, when received, does not operate as a legal or equitable assignment, since the assignor in either case retains control over the subject-matter. The test is ’ even of an equitable assignment ‘ whether the debtor would be justified in paying -the debt of the portion contracted about to the person claiming to be assignee.’. (Fairbanks v. Sargent, 117 N. Y. 320.) ‘ It is the settled doctrine in this State,’ says the court in Thomas v. N. Y. & G. L. R. Co. (139 N. Y. 163), ' that an agreement, either by parol, or in writing, to pay a debt out of a designated fund does not give an equitable lien upon the- fund or operate as an equitable assignment thereof.” The court cited also Williams v. Ingersoll (89 N. Y. 508). Ho portion Of the claim was transferred by the contract counted upon, nor was there any provision that plaintiff. should first satisfy himself out of the proceeds and' then pay over the- balance. Hor could there have been, for he is not alleged to have been her attorney or that she contemplated that he should be. He alleges distinctly that he -promised “ that she would pay him for such services, twenty per cent of the results obtained by hen under the provisions i/n her behalf of said deed of trust.” I think, at best, there was a common-law contract, as to the- validity ■ of which, in the eye of the law, there may be doubt. I am of the opinion that the action in equity here set up will not lie;
It follows, therefore, as the: order appealed from was not founded upon a verified complaint showing a sufficient cause "of action against the defendants to- be served, it must be reversed, with ten dollars costs and disbursements, and the motion to vacate granted, with ten dollars costs.
Ingraham, P. J., Laughlin, Scott and Miller, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs..