| S.D.N.Y. | Jun 1, 1882
It is not disputed that the sum of $826.69 would be a fair compensation to the petitioner for his services to the bankrupts in obtaining the judgment against Hiñe and Phillips in May, 1879. Nothing, however, has been recovered thereon. All „ claims of the petitioner, aside from those connected with that judgment, have been paid, and the only question presented is whether the petitioner has a right to be paid the balance of $782.83 due to him for his services and costs in obtaining this judgment out of the proceeds collected by the assignee, through his subsequent attorneys, upon the two Wilson judgments recovered in January, 1879.
The effect of the agreement of June 7, 1879, between the assignee and the petitioner, was to preserve whatever lien or equitable rights the petitioner then had. It was sufficient for this purpose; it was not intended for any other purpose; it was not approved by the court; and if its terms were in fact such as to enlarge the petitioner’s claims beyond his then existing legal lien, it would not bind the bankrupts’ estate, and the petitioner would be obliged to resort to his personal remedy against the assignee. The assignee, however, took the bankrupts’ estate charged with whatever legal or equitable lien existed against it in favor of the petitioner, and by the agreement then made these liens were preserved as they existed at that date.
On the part of the assignee it was contended that nothing having been collected by the petitioner upon the two judgments against James Wilson, the attorney’s lien thereon was limited to his taxed costs and reasonable compensation in obtaining those judgments. The petitioner contends that his general lien for his whole bill, which legally attached upon the papers in his hands, including the notes upon which the judgments w'ere maintained, followed the judgments and legally bound whatever money was subsequently collected thereon by the assignee.
After examination of the numerous authorities on this subject, English and American, I am satisfied that the claim of the petitioner cannot be sustained, and that an attorney has no general lien upon an uncollected judgment for services in other suits, but only a particular lien for his costs and compensation in that particular cause.
The articles cannot be sold or parted with without loss of the lien, nor can any active proceedings be taken at law or in equity to procure payment of the debt out of the articles so held. Cross, Lien, 47, 48; Thames Iron Works v. Patent Derrick Company, 1 Johns. & H. 93; The B. F. Woolsey, 4 Fed. Rep. 552, 558. The statute of this state passed May 8, 1869, (Laws 1869, c. 738,) which was designed to afford means of realizing payment upon such mere possessory liens, applies Only to liens “upon any chattel property.” Mere choses in action, such as the notes or demands placed in the petitioner’s hands for collection, are not “chattel property,” (2 Bl. *387; Ingalls v. Lord, 1 Cow. 240" court="N.Y. Sup. Ct." date_filed="1823-08-15" href="https://app.midpage.ai/document/ingalls-v-lord-5463980?utm_source=webapp" opinion_id="5463980">1 Cow. 240; Ransom v. Miner, 8 Sandf. 692,) and therefore not within the statute. As this general lien of the attorney upon the notes and demands in suit depended wholly upon possession, and was a mere right of retention, incapable of any active proceedings to enforce payment, it; could not be transferred, nor attach to the judgments obtained upon them or to any proceeds thereof, unless such proceeds came into the attorney’s possession, which is not the fact in this case.
The second kind of lien which an attorney has is that existing upon á -judgment recovered by him, or moneys payable thereon, or
The distinction between an attorney’s “retaining lien” upon papers in his possession, and his “charging lien” upon a judgment or other-fund, is carefully pointed out by the lord chancellor in Bozon v. Bolland, 4 Myl. & C. 354, 359. “The solicitor’s claim upon the fund,” he says, “has been called transferring the lien from the document to the fund recovered by its production. But there is no transfer; for the lien upon the deed remains as before, though perhaps of no value; and, whereas, the lien upon the deed could never have been actively enforced, the lien upon the fund, if established, would give a title to payment out of it. The active lien upon the fund, if it exists at all, is newly created, and the passive lien upon the deed continues as before. If the doctrine contended for were to prevail, the lien of the solicitor upon the fund realized would in most cases extend to his general professional demand, and not he confined, as it always is, to the costs in the cause; for it must very generally happen that the plaintiff’s solicitor has in his hands the documents necessary to establish his client’s title to the money.”
In Lann v. Church, 4 Madd. 207, the vice-chancellor said that he “had not been able to find any case in which it had been held that a solicitor had any lien on the fund recovered in the canse, except for his costs incurred in such cause. ”
Such is the well-established English practice. Stephens v. Weston, 3 B. & C. 538; Hodgkinson v. Kelly, 1 Hogan, 388; Hall v. Laver, 1 Hare, 571, 577; Perkins v. Bradley, Id. 219, 231; Lucas v. Peacock, 9 Beav. 177; Stokes, Attys.’ Liens, 138. The same principle has
In Phillips v. Stagg, 2 Edw. Ch. 108" court="None" date_filed="1833-07-15" href="https://app.midpage.ai/document/phillips-v-stagg-5549051?utm_source=webapp" opinion_id="5549051">2 Edw. Ch. 108, the vice-chancellor says that “the attorney’s lien is not to extend beyond the costs in this action. He cannot claim the amount of other costs due to him in other suits at law.”
In Adams v. Fox, 40 Barb. 442" court="N.Y. Sup. Ct." date_filed="1863-12-22" href="https://app.midpage.ai/document/adams-v-fox-5460654?utm_source=webapp" opinion_id="5460654">40 Barb. 442, 448, Morgan, J., says: “This lien is totally different from the lien upon the papers. The lien on the judgment is confined to the costs of the particular suit, and the attorney can actively enforce it. The lien on the papers is merely a right to retain them, and applies to all his bills of costs.”
In St. John v. Diefendorf, 12 Wend. 261" court="N.Y. Sup. Ct." date_filed="1824-12-18" href="https://app.midpage.ai/document/st-john-v-diefendorf-5514304?utm_source=webapp" opinion_id="5514304">12 Wend. 261, the precise question presented in this case was decided adversely to the attorney’s lien. Having recovered a judgment, the plaintiff’s attorneys there gave notice to the defendant to pay the damages, as well as the costs, to them, on the ground that they had a demand against their client, for costs in other suits, to an amount equal to the damages. The court say: “The question is whether the attorney has a lien upon his client’s money, before it comes into his hands, to satisfy the demand he haB against his client for costs in other suits. * * * An attorney, has a lien upon his client’s papers; but he has no lien upon anything which belongs to his client until it is in his possession. The costs belong to the attorney. There can be no lien upon what belongs to another without possession. ” Pope v. Armstrong, 3 Smedes & M. 214; Cage v. Wilkinson, Id. 223; The Hektograph Co. v. Fourl, 11 Fed. Rep. 844.
The petitioner contends that by the law of this state, as established by the court of appeals in the case of the Bowling Green Savings Bank v. Todd, 52 N.Y. 489" court="NY" date_filed="1873-05-06" href="https://app.midpage.ai/document/bowling-green-savings-bank-v--todd-3609448?utm_source=webapp" opinion_id="3609448">52 N. Y. 489, affirming 64 Barb. 146" court="N.Y. Sup. Ct." date_filed="1872-11-04" href="https://app.midpage.ai/document/bowling-green-savings-bank-v-todd-5462576?utm_source=webapp" opinion_id="5462576">64 Barb. 146, the lien of an attorney for his general balance, which exists upon all papers and vouchers in his possession, is extended equally to any judgments recovered or moneys collectible upon them. In that case a receiver of the plaintiff was appointed after a decree for the foreclosure of a mortgage had been obtained, but before the sale of the premises. The receiver employed Cullen & McGowan, the previous attorneys of the plaintiff, to proceed in the cause, and they afterwards caused the mortgaged premises to be sold and received the proceeds, from which they claimed to deduct not only their bill in that action, but also a bill for professional services due to them from the plaintiff in other matters preceding the appointment of the receiver, and also a third bill
In the court below, Ingraham, J., says, (64 Barb. 155:) “Most of the cases in which this lien [upon the judgment] is recognized are eases where the claim was for costs of that particular action in which the motion was made. But the rule is equally well settled as to any claim which the attorney has for his services, and attaches as well to the proceeds of a judgment as to the papers on which the judgment was founded.” No authorities are cited for this last proposition, nor after much search have I been able to discover any in this country or in England. We have seen that, so far as respects a general lien upon a judgment, or fund in court, the authorities are all to the contrary. Where an attorney has collected money for his client, and no rights of third persons have intervened, through assignment, death, or bankruptcy, ho might, doubtless, offset his own general bill. Patrick v. Hazen, 10 Vt. 184. In the case of the Bowling Green Savings Bank, however, the appointment of a receiver before the collection of the moneys prevented any legal right of set off. The moneys were collected by the attorneys upon the employment of, and as the attorneys of, the receiver; as, in the case of Schwartz v. Schwartz, 21 Hun, 33, the moneys were collected upon the employment and as the attorneys of the assignee. In neither of these cases does the distinction seem to be noted which has been so long established between a mere “retaining lien” upon the papers in the possession of an attorney, which is general but purely passive, and his “charging lien” upon a judgment or fund recovered, which is limited to services in the cause, but capable of being actively enforced.
Numerous prior decisions of the court of appeals have declared, like the English cases, that an attorney’s lien upon a judgment is based upon the equitable consideration that it is by the attorney’s labor and skill that the judgment has been recovered; the judgment
In Rooney v. Second Avenue R. Co. 18 N.Y. 368" court="NY" date_filed="1858-12-05" href="https://app.midpage.ai/document/rooney-v--second-avenue-railroad-company-3599546?utm_source=webapp" opinion_id="3599546">18 N. Y. 368; in Ely v. Cooke, 28 N. Y. 878; in Dunkin v. Vandenbergh,, 1 Paige, 626; and in many other eases, the attorney has upon this ground been regarded as an equitable assignee of the judgment to the extent of his demands in the cause. Prior to the adoption of the Code of Procedure the extent of this lien was limited to the taxable costs. The Code has made no other change than to extend the lien to any agreed or deserved compensation. Marshall v. Meech, 51 N.Y. 140" court="NY" date_filed="1872-09-05" href="https://app.midpage.ai/document/marshall-v--meech-3613753?utm_source=webapp" opinion_id="3613753">51 N. Y. 140, 143; Haight v. Holcomb, 7 Abb. Pr. 210" court="N.Y. Sup. Ct." date_filed="1858-03-15" href="https://app.midpage.ai/document/haight-v-holcomb-5455892?utm_source=webapp" opinion_id="5455892">7 Abb. Pr. 210; Ackerman v. Ackerman, 14 Abb. Pr. 229" court="None" date_filed="1862-03-15" href="https://app.midpage.ai/document/ackerman-v-ackerman-6115558?utm_source=webapp" opinion_id="6115558">14 Abb. Pr. 229.
Harris, J., in the Case of Rooney, above cited, says that the attorney is now “to be regarded as the equitable assignee of the judgment to the extent of his claim for services in the action.” In the same case Comstock, J., says: “The attorney is entitled to alien, as against his client, because his labor and skill contributed to the judgment, * * ⅜” and he “has an interest in the judgment either to the amount of those, or for some other amount which he is entitled to claim (by agreement or on the quantum meruit) as the measure of his compensation.”
In Marshall v. Meech, 51 N Y. 143, the court say that the “attorney has a lien for his costs and compensation upon the judgment recovered by him. Such a lien existed before the Code, and is not affected by any provision of the Code. The lien exists, not only to the extent of the costs entered in the judgment, but for any sum which the client agreed his attorney should have as a compensation for his services. To the amount of such lien the attorney is to be deemed an equitable assignee of the judgment.”
In Wright v. Wright, 70 N. Y. 100, the court say: “The attorney had a lien for the amount of his costs and agreed compensation upon the judgment, and to that extent may be regarded as an equitable assignee of the judgment.” See, also, Ward v. Syme, 9 How. Pr. 16" court="None" date_filed="1852-12-15" href="https://app.midpage.ai/document/ward-v-wordsworth-6142609?utm_source=webapp" opinion_id="6142609">9 How. Pr. 16.
Neither in the decisions nor in the principles announced in any prior cases do I find any warrant for holding that an attorney has any lien upon an uncollected judgment beyond his compensation in the particular cause.
In the case of Wolfe v. Lewis, 19 How. (U. S.) 280, a case very closely analogous to that of the Bowling Green Savings Bank, the attorney had obtained a judgment of foreclosure, but the money due was paid into court without sale. Upon the attorney’s claim
In a recent case (In re Knapp, 85 N.Y. 284" court="NY" date_filed="1881-05-19" href="https://app.midpage.ai/document/in-the-matter-of-the-application-of-knapp-3576796?utm_source=webapp" opinion_id="3576796">85 N. Y. 284) Danforth, J., says: “The lien of the attorney «pon a judgment recovered by him is uphold upon the theory that his services and skill procured it,” (71 N.Y. 443" court="NY" date_filed="1877-12-18" href="https://app.midpage.ai/document/coughlin-v-new-york-central--hudson-river-railroad-5478596?utm_source=webapp" opinion_id="5478596">71 N. Y. 443;) thus reaffirming the only ground upon which this lien has ever been put, and which, while it explains the reason for the lien, also necessarily limits it to the services and charges in the same action. In the case last cited the same eminent justice adds: “No now rule was enunciated in Bowling Green Savings Bank v. Todd, 52 N.Y. 489" court="NY" date_filed="1873-05-06" href="https://app.midpage.ai/document/bowling-green-savings-bank-v--todd-3609448?utm_source=webapp" opinion_id="3609448">52 N. Y. 489, where it was said that the lien of the attorney attaches to the money recovered or collected upon the judgment.”
As the prior rule was undoubted that the lien upon the judgment did not extend beyond the costs and compensation in the cause, or in the same subject-matter, and as no new rule was intended to be enunciated in the Case of the Bowling Green Savings Bank, it must be understood that the court of appeals did not intend in that case to overrule so many express adjudications that where the moneys have not been reduced to the attorney’s actual possession, his lien upon the judgment does not extend beyond the amount of compensation due to him in the particular cause, or in the same subject-matter. In re Paschal, 10 Wall. 496; The General Share T. Co. v. Chapman, L. R. 1 C. P. Div. 771.
In the present case the petitioner never came into possession of the moneys claimed; they were procured by the services of other attorneys, by legal proceedings subsequent to the date of the petitioner’s claim. These subsequent services were necessary to realize anything upon the judgment, and the subsequent attorneys have their own lien upon the judgment and its proceeds for their subsequent services in the cause; and, upon the doctrine contended for by the petitioner, they might have a conflicting lien for their own general balance, to the full amount collected, if their bill amounted to so much. Were the doctrine to be recognized that attorneys have a general lien for all their professional services upon each and every uncollected judgment which they might have obtained in behalf of a client, through an indefinite period, very great confusion and inconvenience would be the necessary result. The petitioner’s general bill, in this case, exceeded each of the judgments against .Tames Wilson. If one of them only had been collected by the subsequent
The bill of services which the petitioner now seeks to charge upon the two earlier judgments is, moreover, a bill for obtaining judgment against Hiñe and Phillips, some four months afterwards. How much, if any, of this bill existed in January, 1879, when the judgments against Wilson were recovered, does not appear; and, by the rule that formerly existed, the attorney had no lien, except upon papers in his hands, until judgment, or, at least, till a verdict. Sweet v. Bartlett, 4 Sandf. 661; McCabe v. Fogg, 60 How. Pr. 488" court="None" date_filed="1880-07-15" href="https://app.midpage.ai/document/mccabe-v-fogg-6144855?utm_source=webapp" opinion_id="6144855">60 How. Pr. 488. This latter bill, as it now stands, could not, therefore, have been a lien upon the prior Wilson judgments when they were entered; and if not a lien then, how could it become so afterwards? Neither principle nor authority can "sanction an increase in the amount of a lien upon an uncollected judgment through subsequent services in independent matters. Section 66 of the new Code of Procedure, 1879, which gives an attorney “a lien upon his client’s cause of action” from its commencement, refers, I think, to his services and charges in the cause itself, and no more, and does not affect the questions here considered.
The petitioner’s claim to a lien upon the judgments against Wilson must therefore be disallowed.
Upon the pending suits, transferred by the petitioner under the agreement, the assignee has collected $144.57. The petitioner had a lien upon these suits and .on the papers therein for his general bill, which the agreement has preserved. Those papers were essential to the further prosecution of these suits, and to the recovery of the moneys afterwards collected therein. Upon the authorities above cited (In re Paschal, 10 Wall. 483; In re Broomhead, 5 Dowl. & L. 52, etc., supra) the court would not have ordered those papers to be transferred by the petitioner except upon payment of his general bill, or some security analogous to that of the agreement made. Carver’s Case, 7 Nott. & H. 499; Heslop v. Metcalfe, 3 Myl. & C. 183; Cane v. Martin, 2 Beav. 584; The Hektograph Co. v. Fowl, 11 Fed. Rep. 844. By that agreement this lien must be paid, “out of the first mon
The substitution of attorneys upon the Wilson executions, and the surrender of the notes upon which those judgments were founded, were not necessary, and were of no value in the subsequent collection of those judgments; they were not even clearly embraced in the terms of the agreement between the parties; and, as they were of no beneficial use, the surrender of them cannot now serve as a basis for any 'claim to a general lien upon the Wilson judgments which did not previously exist.
In Hodgins v. Kelly, 1 Hogan, 388, the court say: “The general lien exists as to the papers and-deeds in his [the attorney’s] hands, but cannot be extended to the funds in the cause if the plaintiff can obtain payment without his assistance or the use of those papers.”
The petitioner may have an order for the payment of $74.55, and his disbursements in this proceeding.