125 N.Y.S. 179 | N.Y. App. Div. | 1910
Henry F. Albers was the owner of certain property on Riverside drive. On June 5, 1903, he retained Mulqueen & Mulqueen as his attorneys to appear for and represent the said property in proceed
On February 10, 1905, by deed recorded February 18, 1905, Albers and his wife conveyed all the premises above mentioned to •the Albers Realty Company, a corporation then recently organized, of which Albers was the president, he and his wife and the bookkeeper in his employ being directors, and the bookkeeper being the secretary and treasurer. For this conveyance the corporation paid no cash, but issued all of its shares, and of those shares Mrs. Albers received and held nearly all. On February 13, 1906, the corporation counsel caused to be published in the City Record a notice of application to the Supreme Court on February 26, 1906, for thé appointment of commissioners of estimate and assessment in the matter of the city’s application to acquire title to lands and premises required for the purpose of widening Riverside drive from West One Hundred‘and. Fifty-eighth' street to West One Hundred and Sixty-fifth street.
On.February 15, 1906, Mulqueen & Mulqueen filed their written notice of appearance as attorneys for Henry F. Albers, owner of lot 10, block 2136, that lot being the premises above referred to. On March 26, 1906, Albers wrote to Mulqueen & Mulqueen as follows: “ In the matter of the claim of H. F. Albers against the City of Hew York. I hereby revoke the authority given, you in and by a certain paper dated Mew York, June 5, 1903, a copy of which is hereto annexed, and you will take no further steps or do any act thereunder.” The order appointing commissioners of estimate and assessment was made on April 18, 1906. On the same day the Albers Realty Company, by H. F. Albers, its president, retained Benjamin L. Blauvelt to obtain as large an award as possible for its property and authorized him to represent its interests before all proper • authorities, and agreed to pay Mm for his services ten per cent of whatever award might be obtained. Thereafter Mr. Blauvelt put in the proofs and represented this property before the commissioners.
On February 5, 1908, Mulqueen & Mulqueen filed a notice of lien against said award for ten per cent thereof based upon the written retainer, whereupon this proceeding was brought to cancel said notice of lien. The Special Term has granted that application and from the order entered thereon this appeal is taken.
The appellants base their claim upon the proposition which is stated in Sutherland on Damages (Vol. 3 [3d ed.], p. 2042): “On the client’s breach of a special contract for legal services, he is liable for the amount he has agreed to pay subject to such abatement as would in the natural course of things have been incurred in the way of expense by the attorney, if he had been permitted to perform his agreement,” and rely upon the following cases in this State : Marsh v. Holbrook (3 Abb. Ct. App. Dec. 176); Lawson v. Bachman (81 N. Y. 616); Matter of Grapel v. Hodges (112 id. 419); Matter of Bobbins (189 id. 422); Carlisle v. Barnes, No. 1 (102 App. Div. 573).
In the Carlisle case plaintiff sued for damages for breach of contract. Mr. Justice Patterson said: “ It is further alleged that * * * the defendant employed the plaintiff as his attorney and counsel to institute and prosecute in the United States and State courts, or before the executive departments of the United States government, such proceedings as might in the plaintiff’s judgment be necessary to collect the claims of the defendant’s constituents for and on account of the exaction of the customs duties referred to; * * * that * * * [defendant] would pay to the [plaintiff] for services rendered an d to be rendered in connection with the said claims
Of course there is a line of cases of which Tenney v. Berger. (93 N. Y. 524) is an instance, where the court said: “ While the attorney is thus bound to entire performance and the contract as to him is treated as an entire contract, it is a singular feature of the law that it should not be treated as an entire contract upon the other side; for it is held that a client may discharge his attorney, arbi
The cases cited to support that doctrine come, I think, under two classes: Firsts where there has been a general retainer; or, second, where the attorney has discharged himself or been discharged for cause. However that may be; the. cases first above cited treat a specific contract between attorney and client upon the principle applied to other contracts for services, and hold that upon a breach by the employer the measure of the damages is the value of the contract. But the cases cited were cases where the attorney had brought an action for damages for the breach of his contract. The present proceeding has to do with the enforcement of an attorney’s lien.
Section 66 of the Code of Civil Procedure (as amd. by Laws of 1899, chap. 61; now Judiciary Law [Consol. Laws, chap. 30; Laws of 1909, chap. 35], § 475) provides that “from the commencement of an action or special proceeding, •* * * the attorney who appears for a party has a lien upon his client’s cause of action, claim * * * which attaches to a verdict, report, decision, judgment or final order in his client’s favor, and the proceeds thereof in [whosesoever] whosoever hands they may come.”
In Matter of City of New York (East 178th Street) (107 App. Div. 22) this court said: “ It is the service of the application for the appointment of commissioners of estimate and assessment that is the commencement of the proceeding. Prior to that time the property was not in any wise affected.”
That daté in the case at bar was February 13, 1906, and upon that date the title to the land involved and for which an award has been made had passed out of Henry F. Albers into the Albers Realty Company by a deed dated February 10, 1905, and recorded February 18, 1905.
As the appellants had no retainer or contract with the Albers Realty Company, the owner of the property at the time of the commencement of. the proceedings, and the party' entitled to the award upon which the lien is sought to be impressed, they had no lien which ever attached. Their remedy, if any, is by action against their client for breach of contract. It cannot be established in this proceeding.
Ingraham, P. J., McLaughlin, Laughlin and Scott, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements to resjiondent.