99 N.Y.S. 802 | N.Y. App. Div. | 1906
An agreement by a wife to compensate her attorney for his services in an action by her - against her husband for a separation by
It is established in this proceeding,-hoAve ver, that the reasonable value of the services and disbursements in question was the sanie as the amount specified in the agreement betAveen the attorney and his client. Hence it is necessary to consider whether the lien declared in this case can be sustained independently of the agreement fixing the price and on the assumption that the services were in fact reasonably Avorth the amount agreed to be paid therefor.
It probably will not be questioned that an attorney’s lien cannot exist concerning .property to Avhich the client has no title or claim. Unless Mrs. Decker has become entitled to the money deposited by her husband with his attorneys, the respondent can have no lien thereon, because it is self-evident that an attorney cannot acquire a lien on property to which his client Avas not entitled.
In theory of Iuav the appellant has never parted Avith the possession or control of the money which he delivered to his attorneys. The agreement providing for the payment of the $3,000 only con-' tern plated such payment to Mrs. Decker in case judgment was entered against the appellant in the separation action. The respondent urges that such payment Avas not conditional on the entry of judgment. That, hoAvever, Avas the meaning of the parties. When that agreement was made a reconciliation Avas not in contemplation, and it Avas expected that the status, of the parties Avould bo fixed by a legal separation. The entry of judgment would be-perhaps merely formal, but a legal separation in fact Avas contemplated. And the petition herein of the respondent- expressly states that it Avas made a condition of said settlement betAveen Mrs. Decker and her husband that said action for a separation “ should be continued to judgment,” and also that the money Avas deposited by the appel
But it is urged by the respondent that his client colluded and conspired with her husband to defraud her attorney out of his claim for services. The order appealed from recites “that said Nellie B. Decker and Fred S. Decker have since the commencement of said action cohabited together as husband and wife, and that she has returned to the bed and board of said Fred S. Decker.” It is quite probable that Mrs. Decker and her husband have been guilty of bad faith and duplicity towards the respondent. But it is hardly supposable that she has cohabited with her husband and returned to his bed and board for the purpose of defrauding the respondent. The resumption by her of her marital relations with her husband is to be commended and must be sustained by the court, even though the effect thereof be to place her attorney at a disadvantage in the collection of his claim for services. It appears conclusively that she has condoned her husband for his acts of cruelty, and by such condonation she no longer became entitled to a judgment for separation, nor would the court grant such judgment, even though both parties so requested., Conceding that Mrs. Decker colluded with her husband to defraud her attorney, nevertheless such collusion was an outgrowth of her reconciliation with her husband, and it logically and necessarily follows from such reconciliation that she never acquired any claim or title to the §3,000, and hence the lien of her attorney could no more attach thereto than it could to any other property of her husband. Whatever the rights of the attorney may be, it is clear that he has no lieu on the money in question.
The order must be reversed and the motion denied, hut under the circumstances no costs are awarded.
All concurred.
Order reversed, without costs, and motion denied, without costs.