91 N.Y.S. 1034 | N.Y. App. Div. | 1905
The 'defendant Bruno, through the respondent as his attorney of record, brought an action to recover damages for personal injuries, which, he subsequently settled for $500 without the knowledge or consent of his attorney, who brings this action to foreclose his lien upon the fund for services. The material, facts are not controverted. After the commencement of the action for personal injuries
The appellant first insists that since the action has been .transferred. to the Circuit Court of the United States the courts of this State have no jurisdiction to enforce the lien of the attorney. We are of opinion that this contention is not tenable. It appears that after the settlément the plaintiff’s client departed from this country. Nothing remains-to be tried except upon one or both of two theories, first, that the release was fraudulently obtained of .the client by the appellant, and this it should not be permitted to urge, and", of course, does not claim; or, second, that .it was procured with a view to defrauding the plaintiff of compensation for his services, and this likewise cannot be raised by the appellant and may be. waived by the attorney by ratifying the settlement as he has done here.
The client lias been made a party defendant, but he has not been served either personally or by publication nor has he appeared. The learned counsel for the -appellant contends that the client was a necessary party, because the issues involved a determination of the liability of the client to the attorney and the amount thereof.' We agree with this contention, and are of opinion that the. judgment must be reversed upon that ground. The action is brought on the authority of Fischer-Hansen v. Brooklyn Heights R. R. Co. .(173 N. Y. 492), which holds that a client may settle an action- without the "knowledge or consent of his attorney if the settlement be made in good faith and without intent to defraud the attorney, and that the lien of the attorney for his services" is transferred from the cause of action to the fund agreed to be paid in settlement thereof while the same is-in the hands of the adverse party and before payment thereof to the client. The decision affords a remedy to the attorney by an action ■ to foreclose the lien upon the fund, notwithstanding the fact that the fund may have been fully ,paid 'over to the client, provided, of course, that by reason of the insolvency of the client or his departure from the State" the attorney is obliged to resort to the lien as the only means-of recovering for his services. If the appellant, .before paying the
Yah Brunt, . P. J., Batterson, O’Brien and Hatch, JJ., concurred.
Judgment reversed, new trial ordered, costs-to appellant .to abide event.