4 N.Y.S. 580 | N.Y. Sup. Ct. | 1889
Section 66 of the Code of Civil Procedure is explicit in regard to the lien of an attorney upon his client’s cause of action for his services. The amount of it “is governed by agreement, express or implied, which is not restrained by law.” It attaches upon the service of the first pleading, “and cannot be affected by any settlement between the parties before or after judgment.” Ho notice of the lien need be given to the adverse party. The statute makes the lien complete. Payment in settlement of the cause of action to the party himself, without notice to the lienor, and without affording him an opportunity of protection, unless he has waived his rights, cannot prejudice him. A right so fully and completely vested must necessarily draw to itself a remedy adequate to its enforcement.
The simplest remedy, in the case of the attorney for the plaintiff, where the parties settle before trial, is to permit him to continue the action, and recover so much upon his client’s cause of action, as it existed before settlement, as equals the amount of the lien. Such was the course here pursued, and is sanctioned by authority. Coster v. Ferry Co., 5 Civ. Proc. R. 146, 98 N. Y. 660; Wilber v. Baker, 24 Hun, 24; Forstman v. Schulting, 35 Hun, 504; Pickard v. Yencer, 10 Wkly. Dig. 271; Albert Palmer Co. v. Van Orden, 64 How. Pr. 79. There are cases the other way, but, if we are right in supposing that the case first cited has been affirmed by the court of appeals, they cannot control the question here presented. Judgment affirmed, with costs. All concur.