112 N.Y.S. 842 | N.Y. App. Div. | 1908
Lead Opinion
The appellants, who were the attorneys for the defendants in this action, presented a petition to the Supreme Court alleging that this action was commenced on the 10th of March, 1904, and at the time of the commencement of the action a temporary injunction was obtained restraining the individual defendants from voting on certain stock in the. Bankers’ Life Insurance Company. After this action was at issue it was referred to a referee who filed his report in favor of the defendants, on which report judgment was duly entered, the costs and allowances included in such judgment amounting to $3,366.56; and from that judgment an appeal was
The order fixing the amount of the petitioners’ lien standing unreversed, I think, both at common law and under section 66 of the Code of Civil Procedure, the petitioners had a lien upon the judgment obtained against the plaintiff as the result of their efforts which was unaffected by any settlement between the parties, and as the amount of the value of the petitioners’ service fixed by the order confirming the report of the referee 'at $5,654.73 remains unpaid, the petitioners were entitled to have the cancellation and satisfaction of that judgment vacated so far as to allow them to enforce that judgment in satisfaction of their lien and the judgment reinstated. (Baxter v. Connor, 119 App. Div. 450 ; Corbit v. Watson, 88 id. 467; Matter of Regan, 167 N. Y. 343 ; Marshall v. Meech, 51 id. 140.)
Our conclusion, therefore, is that the order appealed from should be reversed so far as it denied the application to cancel the satisfaction of the judgment. I think also that the order canceling the undertaking on appeal to this court should be vacated. The undertaking was given to stay the execution of the judgment. But for that undertaking the petitioners would have been able to collect the judgment, and as they had a lien upon it for the valne of their services they would have been justified in retaining that sum on account of such services. The order which was entered canceling this undertaking recited on its face that it was on the consent of the defendants and not upon the consent of their attorneys. As the judgment was entirely for costs there was notice to all the persons liable upon it that the attorneys had a lien upon it for their services, and from the form of the order the surety company was chargeable with notice that the order was entered without the consent of the attorneys. The order vacating an undertaking on appeal without the consent of all those interested in enforcing the judgment was ineffectual as to those who had not consented or had notice of the application, and as the petitioners had a lien upon the judgment and a right to enforce it in the protection of such lien, and the order canceling the undertaking was without notice to them, they should not be prejudiced by that order. I think, therefore, as to the petitioners, that the order canceling the undertaking on
The order appealed from should, therefore, be reversed, with ten dollars costs and disbursements to the appellants, the order cancel-ing the. judgment vacated and the judgment reinstated, and the order canceling the undertaking on appeal vacated, denying, however, the motion of the petitioners to cancel the order discharging the undertaking given upon obtaining the temporary injunction.
Clarke and Scott, JJ., concurred; McLaughlin and Houghton, JJ., dissented in part.
Concurrence Opinion
I concur in the- opinion of Mr. Justice Ingraham in so far as he holds that the order canceling the judgment should be reversed and the judgment reinstated. I do not concur with him, however, that the order canceling the undertaking on appeal should be vacated. The petitioners as attorneys had a lien upon the judgment for their services and disbursements, and the judgment could not be satisfied until that had been paid. I do not think, however, that they had
Houghton, J., concurred.
Order reversed, with ten dollars costs and disbursements to appellants, judgment reinstated and order directed as stated in opinion; Settle order on notice.