In re the Judicial Settlement of the Account of Rowland & Everett

66 N.Y.S. 1121 | N.Y. App. Div. | 1900

Hirschberg, J.:

The appellant acted as attorney for the executors of the deceased, and claims to be entitled to compensation for-his services. Among the assets of the estate was a deposit .in the name of the testator in the Williamsburgh Savings Bank amounting to $1,344.30, which had come into the appellant’s possession in the course of the preparation of the executors’ accounts for the purpose of settlement. On the 8tli of May, 1900, the appellant drew the money from the bank, and retained it in his possession under and by virtue of a claim to a lien thereon for his services. The money was drawn on an order signed by one of the executors, who accompanied the appellant to the bank, and who makes affidavit that the appellant stood close to the bank teller’s window and took possession of the money before lie,- the executor, was able to secure it. The order appealed from as resettled requires the appellant to deposit the money to the credit of the executors.

The appellant has no lien upon the money. By the amendment to section 66 of the Code of Civil Procedure, effected by chapter 61 of the Laws of 1899, it may be assumed that proceedings in Surrogates’ Courts were included within the provisions of the section. As so amended, the section provides that the attorney 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. The money in dispute is not within the. description cited, nor does it proceed from any cause of action, claim or counterclaim, or any resultant verdict, order, decision, etc. The section does not purport to give a general lien upon all moneys belonging to the client. Moreover, the amendment did not take effect until September 1, 1899, while the appellant’s services appear to have been rendered in great part, if not wholly, before that date. The amendment is purely prospective in its operation. (Goodrich v. McDonald, 112 N. Y. 157.)

Whether the appellant has or has hot a lien upon the money, the order appealed from in no respect impairs his rights. It only provides for the safe custody of the estate of the deceased, until his claim and rights with those of others can be judicially investigated and determined. This was the view taken by the former General Term of this department in the very similar case of Matter of De Oraindi (31 N. Y. St. Repr. 744), and in which it was held that an order directing an attorney to deposit moneys which he had collected for an estate pending an inquiry into a claim by the attorney to hold them for services rendered to the estate, is within the discretion of the surrogate.

The order may also be upheld, irrespective, of the validity of the appellant’s claim of a lien, as ancillary to the power of the court to determine and enforce the lien under section 66 of the Code by virtue of the additional amendment made by chapter 61 of the Laws of 1899, to the effect -that the' court upon the petition of the client or attorney may determine and enforce the lien. This amendment relates to the remedy only, and would seem quite applicable to a case like this where the attorney has possession of a fund belonging to the client considerably in excess of his claim for services, and asserts the right to retain it by virtue of a lien. .

The order should be affirmed.

All concurred.

Order of the Surrogate’s Court of Kings county affirmed, with ten dollars costs and disbursements-.