Schiefer v. Freygang

125 N.Y.S. 1037 | N.Y. App. Div. | 1910

Lattghxin, J.:

The order from which the appeal was taken was made on the application of the respondent, who does not show that lie is.or ever has been one of the attorneys of record in this action.' It appears that "on the 11th day of December, 1906, a copartnership which then existed between appellant Berkeley and the respondent Bushby as attorneys and counselors at law was dissolved. They had brought an action for the plaintiff as an abutting property owner on Park avenue, opposite the viaduct of the defendant railroad companies, to recover damages, and it was pending at that time. It appears by the dissolution agreement that appellant Berkeley undertook “ to wind up the unfinished business of' said firm, including * * * plaintiff’s claims,” and it is claimed on conflicting evidence that the respondent Bushby was to receive thirty per. cent of the fees “ of said firm of Bushby & Berkeley in the plaintiff’s case.”. There was no recovery in that action, and the settlement , in -question was not made therein. After, commencing that action the plaintiff conveyed her premises, and in the conveyance attempted to reserve to herself the fee and rental damages claimed to have been caused by the viaduct and operation of trains thereon. Her grantee died, and thereafter his administratrix, next of kin and heirs, without the consent of plaintiff, settled with the railroad companies. Thereafter this action .was commenced in March, 1907, to enforce the plaintiff’s rights against the railroad companies under the reservation in the said conveyance, and the appellant Berkeley alone was retained by her to bring the action, and for aught, that appears, he became, and still is, the attorney of record.

It appears that Busliby brought an action against Berkeley for a copartnership accounting which is still pending, and that in that action he made an application to the court for the appointment of a receiver of the. copartnership property, which was denied by an order of Special Term on the 28th day of December, 1909; and upon the denial thereof an order was duly entered, from which no appeal has been taken, which recites, among other things, that the court was of the. opinion that the “ title to all the partnership property of said firm passed to the defendant subject to the plaintiff’s right to an accounting.” The respondent on learning that the settlement of this action had been negotiated by which the defendant railroad companies were to pay to the plaintiff $1,500, and the other defendants $500, applied for the relief granted by the order from which the appeal is taken.

It does not appear that the application is based on any facts not pre-. sented to the court on. the motion for the appointment of a receiver tending to show the necessity, for the protection of the respondent’s right, of impounding the fees in which he claims to have an interest. The motion was, therefore, in effect, a renewal of the application, but in another action, for the appointment of a receiver withoyt leave of the court or additional papers setting forth additional facts which have arisen since the former motion was mad'e. Under the dissolution agreement, as has been seen, the appellant Berkeley was to have charge of the litigation then pending in behalf of the plaintiff subject only, to his duty to account to the respondent for a proportionate part of the fees of the attorneys. The question evidently presented on the application for the appointment of a receiver was whether the conduct of the appellant Berkeley or his pecuniary responsibility was such that the rights of respondent would not. be fully protected if the appellant Berkeley were allowed to continue in charge of the copartnership interests, property and funds pending the action. The order, therefore, made on that application is in the circumstances a bar to the relief sought by the motion made in this action.

Moreover, the respondent being neither a party to this action nor, so far as shown, an attorney of record for any party, has no standing to make-tlie motion. • If the agreement between the attorneys be such that the respondent.has an interest in the fees to be received by the attorney of record for the' plaintiff in this action, that is a matter of no concern to the defendants or to the plaintiff herein, as it depends entirely on the dissolution agreement. . It may be said that the respondent and his copartner as attorneys of record' in the former action had a lien on the plaintiff’s canse of action, of which the defendants therein could not deprive them without their knowledge or consent. Such a theory would not avail the respondent,- for it does not appear that the moneys which the defendants herein have agreed to pay are to be paid in settlement or compromise of the original action ; but if it did the parties could not be made parties to a controversy between the attorneys, nor could they .be delayed in the .settlement of the action by the controversy between the attorneys with respect to a division of the fees which in no manner concerns them. The payment of the amount of ■ the lien of attorneys’ fees to one of the attorneys of record would relieve the defendants from all liability even though formal notice of a lien were given.

It follows, therefore, that the order should be reversed, with-ten dollars costs and disbursements, and motion. denied, with ten dollars costs. ■ ' '

Ingraham, P. J., McLaughlin, Scott, and Dowling, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and ■motion denied, with ten dollars costs.