54 A.D.2d 1125 | N.Y. App. Div. | 1976
Order and judgment unanimously modified, on the law, in accordance with memorandum and, as modified, affirmed, without costs. Memorandum: Petitioner-respondent John Manning Regan (Regan) brought the instant proceeding pursuant to section 475 of the Judiciary Law to fix a lien for attorney’s fees and disbursements upon the proceeds of a money judgment which was rendered in favor of his client, respondent-appellant Marco M. Frisone, Inc. (Corporation). The Corporation appeals from a judgment in Regan’s favor in the sum of $23,859.48. Appellant does not challenge the reasonableness of the amount fixed by Special Term. Its sole contention is that a retainer agreement between Regan and "Marco M. Frisone, individually”, which contained a handwritten addendum limiting legal fees payable "under this agreement” to $20,000, constituted a bar to Regan’s claim under section 475 of the Judiciary Law. Special Term’s memorandum decision fully sets forth all of the pertinent facts, and properly determined that the retainer agreement was unambiguous, that it did not bar Regan’s quantum meruit claim for legal services against the Corporation. Special Term noted that its decision did not prevent Frisone individually from commencing an action on the retainer agreement, but only prevented the agreement from being used as a defense to Regan’s claim of an attorney’s lien against the Corporation. We agree with this determination. However, we do not agree with the amount of the lien found by Special Term. Section 475 of the Judiciary Law provides that the attorney’s lien attaches "to a * * * judgment or final order in his client’s favor, and the proceeds thereof in whatever hands they may come”. At the reargument hearing, Regan made clear that his lien petition pertained to the Pelbro foreclosure action and the actions tried jointly with it in late 1970, but not to any other matters he may have handled for the Corporation. Regan also indicated, however, that not all of the Corporation’s funds held by him were "proceeds” of the Pelbro foreclosure judgment. Frisone indicated that Regan held over $86,000 collected in various matters that he had handled for Frisone. While Regan did not confirm that figure, he did acknowledge that he had handled "substantial other litigation for Mr. Frisone” which had "nothing to do with the Pelbro cases”, and that he and his client were negotiating as to fees in those other matters. The Pelbro foreclosure judgment, Regan stated, had been satisfied in August, 1972 by payment into his hands of $67,152.97, some 60% of which (i.e., $39,714.40) he distributed to subcontractors on behalf of the Corporation according to an agreement. Of the remaining $27,440.83, he paid Frisone $4,000, and took "approximately $4,000” for himself as partial payment for services. He kept the remaining $16,000 of the proceeds of the Pelbro judgment at interest in a bank pending resolution of his dispute with Frisone. The statutory attorney’s lien under section 475 of the Judiciary Law, like its predecessor, the common law "charging lien”, is not a lien for the general balance of any account owing to the lawyer from the client, but only for the value of services rendered in the particular action which produced the recovery sought to be charged (see Matter of Heinsheimer, 214 NY 361, 364-365). "If, then, an attorney prosecutes a number of suits for a client, the lien given him by law
