12 Abb. Pr. 324 | New York Court of Common Pleas | 1861
—This was a motion on the part of the defendant for an .order discontinuing the suit, on the ground that it had been settled between the plaintiff and the defendant. The action was brought by the plaintiff, to recover
Where a settlement is privately effected between the parties, with the design of preventing the attorney from obtaining his costs, the court will, notwithstanding the settlement, allow the attorney to go on and collect the costs in the action, that he may thereby secure himself. (The People a. Hardenbergh, 8 Johns., 335; Pinder a. Morris, 1 Cai., 165 ; Read a. Dupper, 6 T. R.,
They claim the rule to be, that if, after verdict rendered or judgment entered, the parties settle in fraud of the attorney’s lien, the court will allow him to enforce the judgment to the extent of the costs included in it, and even then only where he has given notice to the defendant of his lien. The case of Swain a. Senate (5 Bos. & Pul., 99) is expressly to the contrary. In that case there was a collusive settlement before judgment, and the attorney had given no notice of his claim for costs, yet he was allowed to enter judgment, and to issue a scire facias against the bail; the court said that it was a fraudulent attempt to deprive the attorney of his costs, and that therefore the’plaintiff’s-attorney ought to be at liberty to proceed for his costs, and to recover nominal damages.
We are referred to the case of Exparte Hart (1 Barn. & Adolph., 660), to show that where the action is for unliquidated damages, the parties may settle, even though the attorney has given notice to the defendants not to compromise or settle the suit without his consent, and in which the court refused to aid the attorney. The court did notice that feature as distinguishing it from the preceding cases, which were for the recovery of a liquidated amount; but they also put their decision upon the ground that there was no collusion in that case: where there is collusion, it can make no difference whether the damages are liquidated or not. The power of the court is not limited to cases where the action is brought for a liquidated sum, but it interposes upon the general principle that it is equitable and right to protect the attorney against a dishonest combination between the parties to deprive him of the fruits of his labor and services. The plaintiff’s attorney had a right to go on and enter up judgment for the costs, and the motion of the defendants for an order discontinuing the action was properly denied.
Present, Daly, F. J., Brady and Hilton, JJ.