185 A.D. 55 | N.Y. App. Div. | 1918
This proceeding was begun by the city of New York to open and to widen a city street. The sole substantial question presented by this appeal is whether the award for damages to the landowner Kelley is subject to the attorneys’ lien asserted by Messrs. Dessar & Ridgway. When the proceeding was commenced in 1910, the land now represented by the award was of a tract owned by James, who as owner made a written contract of retainer of the said attorneys to represent him in the proceeding, and agreed to pay for their services a contingent fee of ten per cent of whatever award might be recovered for the taking of or damage to said property. Prior to that contract and at the time of its execution the land was subject to two recorded mortgages. Pending the proceeding the second mortgage was foreclosed, and Kelley purchased the land at the foreclosure sale in 1914.
In 1916 title to the part of the land taken vested in the city, and in 1917 the award was made and later affirmed. Thereafter, on motion of Kelley, the award was made payable to him as owner instead of to James, to whom, as the record owner, it had been made payable in the proceeding. When Kelley moved for the said substitution he deposed that Messrs. Dessar & Ridgway asserted a lien for services rendered perforce of a contract with James, and prayed that the lien
The Special Term that made the first order declared that Kelley was, in effect, in the same position as if he had purchased the property direct from James, and thereupon concluded that KeUey took it subject to the Hen of the attorneys for their services. But that declaration is opposed to the learning of Gates v. De La Mare (142 N. Y. 313) and Magee v. City of Brooklyn (144 id. 270). Kelley derived his title to the land, and consequently to the award, under the mortgage foreclosed that was paramount to any Hen or claim based upon the contract of James with the said attorneys. Perforce of that contract the said attorneys did not obtain any Hen upon the land, and the purchaser KeUey was not chargeable with any notice thereof. (Matter of Scheier [Wadick Lien], 159 App. Div. 864; affd., 211 N. Y. 548.) The contract of retainer was the personal contract of James alone. KeUey mortgagee or KeUey purchaser was not privy to it. KeUey both deposes and testifies that he had no knowledge of the retainer or of the services of the attorneys until after the attorneys had filed a notice of Hen with the comptroUer at a time subsequent to the award. In Farmers’ Loan & Trust Co. v. New York Rys. Co. (215 Fed. Rep. 712) it is said that the Hen may be asserted in the absence of a special agreement against one who was aware of the services rendered and took the benefit of them. If this be so, the principle has no appHcation in the case at bar, for the contract of retainer was made in 1910, and the taking of proof of title and of value was completed in 1912, whüe James was the owner of the land, which was not acquired by KeUey untU 1914, although it is true that the affidavit of a member of the attorneys’ firm deposes that his firm in 1915
It is contended that the rule of Schoenherr v. Van Meter (215 N. Y. 548) applies. That case dealt with a “ contractual hen ” enforcible in equity, and was decided upon the principle that the director of a corporation who could sue a delinquent official could contract with an attorney that the attorney should have a hen upon any recovery made for the corporation, and that such contract was in effect one that transferred the equitable hen of the trustee for the expenses of recovery of the fund for his corporation. That is, the corporation was chargeable with salvage. But there was no like relation whatever in the case at bar between James, the owner of the property, and the mortgagee, or KeUey, the purchaser under the foreclosure of the mortgage, that extended the personal contract of James to either mortgagee or purchaser. And in the Schoenherr Case (supra) the court is careful to exclude the apphcation of the rule to the statutory lien of attorneys sanctioned by section 475 of the Judiciary Law (Consol. Laws, chap. 30; Laws of 1909, chap. 35).
It is also contended that the said order of May 13 is not now before us for review. The order of June 25 is a final order in a special proceeding. (Matter of City of New York, 209 N. Y. 127.) The order of May 13 is an intermediate order. The term “ intermediate ” is defined as “ between the two extremes of service of summons and entry of judgment.”
The order in so far as appealed from is reversed, with ten dollars costs and disbursements, and the motion made upon June 18, 1918, is granted, without costs.
Thomas, Rich, Blackmar and Jaycox, JJ., concurred.
Order in so far as appealed from reversed, with ten dollars costs and disbursements, and motion of June 18, 1918, granted, without costs.