63 N.Y.S. 1036 | N.Y. App. Div. | 1900
This proceeding was initiated by service on defendant of a petition and notice of motion, and was brought on for a hearing upon the pleadings and such petition. The action was brought to recover damages for personal injuries due, as alleged, to defendant’s negligence, and the petition shows that, by agreement between the plaintiff and his attorney, the latter was to be paid a contingent fee of one-half of the amount recovered; that the defendant settled with the plaintiff by paying him $260 without the knowledge of the attorney, and that the plaintiff is irresponsible. The defendant submitted no papers in opposition, but objected to the payment of any amount on such summary application. The learned judge at Special Term made an order that the defendant pay to the attorney $130 — which is one-half of the amount stated to have been received by the plaintiff in settlement — and from the order directing such payment this appeal is taken.
Section 66 of the Code of Civil Procedure relates to an attorney’s compensation, and provides that he shall have a lien upon his client’s cause of action which shall attach “ to a verdict, report, decision,
Prior to the amendment of 1899 to section 66 of the Code, it is clear from a review of the authorities that the lien of an attorney, after a settlement by the client, could be enforced in the original action or by a separate action brought for that purpose, but not in a summary way by petition or motion. In Pilkington v. Brooklyn Heights R. R. Co. (49 App. Div. 22), wherein application was made upon affidavits for an order requiring the defendant to show cause why the amount of the attorney’s lien should not be fixed and the defendant directed to pay the same, it appeared that a settlement was made for $2,600, a release given and an agreement which provided that the defendant should “ adjust any claim for costs or for any lien upon the cause of action, which the said attorneys may be able lawfully to establish; ” and the court, stating the conclusion at which it has arrived, said: “ The plaintiff’s attorneys are fully protected. They have their claim against their client, who has a fund of $2,600 on which they have a lien for their compensation ; and in addition they have the defendant’s written agreement, made for a valuable consideration, binding it to pay and discharge this claim and lien, and which is enforcible by action ; or they have the undoubted right, supported by numerous and uniform decisions, to proceed to judgment in this action for the protection and enforcement of their lien, either by default in case no answer has been served, or in the usual way if the action is at issue. (Peri v. New York Central R. R. Co., 152 N. Y. 521.) ” The order entered directing payment was accordingly modified by reducing the amount and by providing that, unless the sum so fixed was paid within a certain time, the plaintiff’s attorneys have leave to continue the action for the enforcement and collection of their lien.
The logical deduction from Pilkington v. Brooklyn Heights R. R. Co. as to the proper practice is that an attorney’s lien as against a defendant not his client must be enforced by action and not by
Those and many other cases that might be referred to are authorities for the statement that prior to the amendment of 1899 — except in special instances such as where there is a fund in court — the lien of an attorney is to be determined and its payment enforced, not in a summary way on motion or petition, but in the usual way by an action legal or equitable. It follows that the practice thus sanctioned is not to be departed from unless expressly changed by the addition made to section 66 of the Code by the amendment of 1899.
The language of the amendment would seemingly confine it to the adjustment of differences between the plaintiff and his attorney, and, as urged by the appellant, enable the court on petition toad minister a fund in possession of the court so that an attorney would be protected, to prevent the satisfaction of a judgment to his prejudice, or to set aside the satisfaction of a judgment so as to permit the attorney, if needful, to enforce his lien. There is nothing in the language of the amendment that in terms applies to a defendant or that takes away from him the right to have his day in court upon the question of his liability and the extent thereof. Whether the Legislature has power to take away the right to litigate in the usual way and in the ordinary forum the defendant’s liability and its amount involves a serious constitutional question which
The order accordingly should be modified, without costs, by directing that the defendant should pay the $130 within twenty days, or in default thereof leave should be given the attorney to prosecute the action to enforce his lien.
Van Brunt, P. J., Patterson, Ingraham and McLaughlin, JJ., •concurred.
Order modified as directed in opinion, without costs.