In re Ross

107 N.Y.S. 899 | N.Y. App. Div. | 1907

Miller, J.:

' This is a proceeding instituted by petition, pursuant to section 66 of the Code of Civil Procedure, to have the lien of an attorney on moneys collected by him determined and enforced. The appellant contends that the petitioner has no lien for the reason that the moneys were, recovered for an administrator of an estate, and hence that the administrator and not the estate is bound.

The rule that the contracts of executors or administrators. bind them personally, and not their estate, has no application to this case. The petitioner claims to have recovered for the estate of the appellant money and property as the result of certain actions and special proceedings. Section 66 of the Code of Civil Procedure 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, claim or counterclaim, which attaches to a verdict, report, decision, judgment or final order in his client’s favor, and the proceeds thereof in whosesoever hands they may come; ” and it does not matter that the client happens to be an executor or administrator. (Matter of Knapp, 85 N. Y. 284; Matter of Kellogg, 96 App. Div. 608; affd., 180 N. Y. 534.) Of course the petitioner has no lien unless the money or property was recovered as the proceeds of a verdict, report, decision, judgment or final order in an action or special proceeding, or as the subject-matter of an action or special proceeding, and then only for services rendered in such action or proceeding or the institution thereof; and the learned justice at Special Term so held. We do not undertake now to pass upon the merits, but only decide that the appointment of a referee to ascertain the facts was proper.

The order should be affirmed.

Hirschberg, P. J., Woodward, Gayhor and High, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.