Sanders v. Soutter

14 N.Y.S. 33 | N.Y. Sup. Ct. | 1891

Brady, J.

The plaintiff, by his proceeding .before the surrogate, sought to establish the liability of the executors of James T. Soutter by which his claim would be secured. He was the creditor of the Duchess D’Auxy for professional services, and seems to have fortified his demand by an assignment originally made by her to Henry Cranston of all her right, title,- and interest as legatee under the last will and testament of Robert Soutter and by mesne assignments to the plaintiff. When the matter was before the surro-' gate on the petition of the duchess, the executors obtained from her appropriate releases, and presented them to him, who thereupon, against the objection and protest of the plaintiff, both as attorney of record for the duchess and on his individual rights, ordered the proceeding dismissed. Ho appeal was taken from that result, and nothing, was further done in that proceeding by the plaintiff to maintain his rights either by appeal or upon the ground that the settlement was collusive. He had -no claim against the estate of Robert Soutter, deceased, of which the duchess was "the administratrix with the will annexed, but against her individually, for professional services rendered her. His claim under the assignment, however, depended for its value upon the result of the proceedings to account, in which he had an interest created by it, and was therefore speculative, while his demand for services was meritorious. His redress' consisted of an appeal or a motion to set aside the decree of the surrogate upon proof of facts showing the collusion by which the decree was obtained. He adopted neither, and his claim must rest, therefore, in abeyance until that decree is set aside or modified, inasmuch as it precludes any action against the executors of James T. Soutter.

Aside from these views, it was held in Re Soutter, 105 N. Y. 519, 520, 12 N. E. Rep. 34, that the proper remedy of the duchess, who was the appellant in that case, and in which her claim was sought to be enforced against the executors of James T. Soutter, was to have an administrator de bonis non with the will annexed of her husband’s estate appointed, who could call the executors of James T. Soutter to an account, and compel payment by them to him of whatever might still be due under the will of James T. Soutter to the estate of Robert Soutter, and would have ample power by proceedings before the surrogate or by a suitable action to call the proper parties to an account for the estate of James T. Soutter. That suggestion seems to have been adopted, and the duchess appointed, and a proceeding before the surrogate commenced by her, as appears from the statement of the facts of this controversy. If from the fact, however, that the plaintiff has acquired by the assignment the right to commence an action against the defendants, it is necessary, in order to enable him to maintain it, as cogently suggested by the learned counsel for the defendants, to allege—First, that some portian of the estate of James T. Soutter to which the estate of Robert Soutter became entitled still remains in the hands of the defendants, executors, undistributed and unaccounted for; second, that the estate of Robert Soutter became and is entitled to have and receive such portion of the said first estate, the same not having been delivered or paid to the executor of Robert Soutter or his successor in trust; third, that the executor of Robert Soutter and his successor neglected or refused to collect from the estate of James T. Soutter the portion thereof to which Robert was entitled, and have been discharged or removed. None of these facts are alleged in the complaint. And it must be also remarked that the complaint fails to allege that the duchess had any actual interest in the estate of Robert Soutter at the time of the alleged assignments, or either of them; and, as suggested by the learned counsel for the respondent, for aught that appears in the complaint she may have received from the estate of Robert Soutter all the moneys to which she was entitled, if any. There is no allegation in the complaint that she had not. It must be further said that, regarding this action as one to create and enforce a lien that the plaintiff has as an attorney, the complaint fails to state a cause of action entitling him to relief. By the common law such a lien arises only after judgment; and, as it is competent for the parties acting bona fide to settle and discontinue a suit before the judgment without the consent of the attorney, he is remitted by its doctrines to his remedy against his client for his compensation. He has no right to bring an equitable action to enforce his inchoate right as an attorney even where there has been a fraudulent settlement of the case. Randall v. Van Wagenen, 115 N. T. 527, 22 N. E. Rep. 361. And by statute his proceeding to enforce his lien must be in the action or matter in which the fees were earned, and as to which his lien is preserved. Code, § 66. For these reasons it is thought that the plaintiff’s case was properly disposed of, save that the complaint should not have been dismissed on the merits. The dismissal was upon the ground that the complaint did not state a cause of action, which is in effect a demurrer. The judgment must therefore be modified by striking out the words “on the merits,” and, as thus modified, affirmed, without costs to either party.

All concur.