143 N.Y.S. 895 | N.Y. App. Div. | 1913
Lead Opinion
Affirmed on opinion of Page, J., at Special Term.
Dissenting Opinion
(dissenting). I am constrained to dissent from the affirmance of the order appealed from because I can see no principle upon which the attorney can have a charging lien upon the judgment for the amount claimed to be due him upon his general retainer. That he is entitled to such a lien for the value of his services in procuring the judgment is not open to question, but as to the amount which had accrued under his annual employment before the appointment of the receiver he stands on the same footing as any other creditor. True, if when his general employment terminated he had had any of the bankrupt’s papers in his hands, he might have claimed a possessory lien as to them and have held them until his claim was satisfied, but such a lien is incapable of foreclosure and never attached to anything not in actual possession of the attorney. In my opinion the order appealed from should be so modified as to provide only for the ascertainment of the value of the services of '-the petitioner in the action which resulted in the judgment.
LAUGHLIN, J., concurs.