16 Misc. 558 | N.Y. App. Term. | 1896
The action was commenced November 9, 1895, by service'of a summons and complaint'on the defendant, to recover $291.07, due on contract. On November 15,■ the last day of the six within which the defendant might appear and answer, the defendant paid the plaintiff the amount claimed, and took a receipt entitled in the action, specifying that the same was in full' . settlement, and that it was agreed that the action be discontinued without costs to either party as against the other.
On the following day, the plaintiff’s attorney, in ignorance of the settlement, entered judgment for the full amount of the claim ' arid costs, and issued an execution thereon to the- sheriff, who levied upon and -took possession of the defendant’s place, of business. The defendant then moved to set aside the judgment, execution and levy, and the motion was denied, unless the defendant within five days paid to the plaintiff’s attorney the sum of $20.96', costs and disbursements of the action, and $27.64, sheriff’s' fees’, incurred by reason of the levy; and the order provided that on such payments being made the defendant should receive an order of discontinuance in satisfaction of the judgment. Upon appeal, the order was affirmed by the General Term, and from such affirm! anee this appeal is taken.
The plaintiff-claims that under section 66 of the Code its attorn ney had a lien upon-his client’s cause of action, which could not be
In a subsequent case (Poole v. Belcha, 131 N. Y. 200), the same court said: “ In order to warrant the court in disregarding a settlement and release made in an action, it must be shown that to give full effect to them will operate as a fraud upon the attorney, or at least to his prejudice, by depriving him of his costs or turning him over to an irresponsible client. * * * The lien secured to an attorney by section 66 of the Code does not prevent the party who owns the judgment from receiving payment thereof, and executing a discharge. When it is shown that such -payment or discharge will operate to deprive the attorney of his costs the court has power to protect him, hut it cannot be assumed that a settlement is in'fraud of his rights. Until the lien of the attorney is asserted in some way, the judgment remains the property of the client.” See, also, Drago v. Smith, 92 Hun, 536.
The attorney is a mere agent of the client, and is supposed to follow the instructions and carry out the agreements of his princi
The only claim the attorney had was' upon his employer, and the right conferred by section 66 of the Code was a mere security by way of lien which might or might- riot, according to circumstances, be necessary for the attorney’s protection. If his client was irresponsible or refused to pay him, he might have applied to the court, on notice, for leave to continue the action in aid of his lien, on his own account and at his own risk (Murray v. Jibson, 22 Hun, 386; Goddard v. Trenbath, 24 id. 182; Dimick v. Cooley, 3 Civ. Pro. R. 141; Oliwill v. Vanderhalven, 26 St. Repr. 115; Pitcher v. Robertson, 21 Supp. 66); and the defendant might have secured -the determination of the question whether such lien was necessary to -the.attorney’s protection before being.harassed by a judgment and a levy upon its property. The course taken gave the defendant no such opportunity. The first notice it had of the plaintiff’s breach of contract ■ was the levy on its property by the sheriff.
A proceeding to enforce the attorney’s lien in a case settled by the client before judgment is in some respects analogous to- one where a settlement is made after judgment, and where the client has discharged the judgment of record. The remedy in such a case is to move to vacate the satisfaction, to the extent of the attorney’s lien; and where it appears that the client is irresponsible, and the satisfaction is made with knowledge' of the attorney’s lien, arid collusively, with intent to defraud him of his compensation, the court will furnish him the necessary protection. Commercial T. Co. v. Smith, 57 Hun, 176; Bailey v. Murphy, 136 N. Y. 50; Guliano v. Whitenack, 9 Misc. Rep. 562; Howitt v. Merrill, 113 N. Y. 630. But it will not. do for an attorney, in either of the cases put, to determine for himself that the lien is necessary for his protection, and to. attempt to enforce it without some application to the court, founded on notice to the adverse party.
There is nothing m the case showing "that the plaintiff is irresponsible or unwilling to pay its attorney, or'that he made any demand upon his .client for compensation, or any effort whatever, to collect his claim from it. Even assuming that the question of enforcing the lien could then be considered, there was nothing before the court showing that the settlement was collusive or in fraud of the attorney’s rights, or that it could, by any possibility, operate to his prejudice. There was, - therefore, no justification for permitting the attorney to collect from the defendant taxable costs which his own client had agreed to pay, much less mulct it with sheriff’s fees, incurred by reason of the neglect of the plaintiff to observe its agreement to discontinue the action.
It follows that the order appealed from must be reversed and the motion granted, with costs.
Daly, P. J., and Bischoff, J., concur.
Order reversed and motion granted,, with costs.