77 N.Y.S. 560 | N.Y. Sup. Ct. | 1902
The plaintiff, an attorney and counselor at law» was employed by defendant’s testator to foreclose mortgages held by him on two pieces of real property, and the agreed compensation was the costs, disbursements and allowances in the two actions if the property was bought by an outsider, or a fee equal to the amount of the costs, disbursements and allowances as taxed if the property was bought in by the mortgagee.
Pursuant to the contract the plaintiff commenced the foreclosure suits and proceeded therein until the mortgagee became entitled to judgment. Before judgment was entered in either action the mortgagee died, and his executrix, the defendant in this suit, declined to avail herself of plaintiff’s services in the foreclosure actions, retained another attorney for that purpose» and obtained orders authorizing her to continue the actions in her-
Section 66 of the O'ode of Civil Procedure provides that: 4‘ From the commencement of an action or special proceeding, or the service of an answer containing a counterclaim, the attorney who appears for a party has a lien upon his client’s cause of action, claim or counterclaim, which attaches to a verdict, report, decision, judgment or final order in his client’s favor, and the proceeds thereof in whosesoever hands they may come; ” and the plaintiff brings the action under this statute to establish a lien ■on the property bought in by defendant at the foreclosure sales. The death of the mortgagee terminated the relation of attorney and client (Putnam v. Van Buren, 7 How. Pr., 31; Lacy v. Getman, 119 N. Y., 109; Greenburg v. Early, 4 Misc. Rep. 99), and thereafter the executrix was authorized in refusing to avail herself of plaintiff’s services and in placing the pending litigation in charge of an attorney of her own choice. The plaintiff was, therefore, unable to render the services which he contracted to perform, and cannot recover the agreed compensation; but I think he is •entitled to a judgment for the work done as upon a quantum meruit. It is true that the plaintiff sues on his express contract with the testator, and not upon a quantum meruit; but I do not think that proof of the value of the services performed by plaintiff constitutes a material variance, for the defendant was not thereby actually misled, to her prejudice, in maintaining her defense upon the merits (Code, § 539). A variance is immaterial where plaintiff in an action for work and labor stated in the complaint to have been done for an agreed compensation is allowed on the trial to prove the value as upon a quantum meruit (Sussdorff v. Schmidt, 55 N. Y., 319; and see Smith v. Lippincott, 49 Barb., 398). And, as the statute gives a lien to the attorney from the commencement of an action upon the proceeds of the judgment therein, I am of - opinion that plaintiff has established a lien upon the property bought at the foreclosure sales, for that property in the defendant’s hands is the proceeds of the judgments entered in the actions instituted -by the mortgagee (Bevins v. Albro, 86 Hun, 590; West v. Bacon, 13 App. Div., 371; Matter of Gates, 51 id., 350).
The cases cited by defendant do not support her contention
Since 1879, however (L. 1879, ch. 542, amending Code, § 66), the force of an attorney’s Een has been defined by the statute, the amendment declaring that the Een attaches to a verdict, report, decision or judgment in his client’s favor, and the proceeds thereof in whosoever hands found. The McDonald case, therefore, cannot be said to control, and there appears to be no valid reason why an attorney should not be aEowed to estabEsh his Een upon the proceeds of a judgment by action in the same manner as a mechanic’s or other Een is established (Zimmer v. Metropolitan St. R. Co., 32 Misc. Rep., at p. 263).
That the plaintiff’s rights could possibly have been successfully asserted on an application to the court, in compliance with the terms of the order allowing the defendant to continue the foreclosure suits, is not deemed of vital consequence; for, under the circumstances, the defendant cannot object because plaintiff did mot resort to a summary method to enforce his Een.
The fact that the property bought in by the defendant at the foreclosure sales is held by her, as to legatees, next of kin and creditors of the deceased, as personalty (Lockman v. Reilly, 95 N. Y., 69) is not material here; for that property is the proceeds of the judgment, and, whether real or personal, the lien attaches thereto.
The plaintiff is, therefore, entitled to judgment for the value of the services actually rendered to defendant’s testator, being $200 in each case, which sum, with his disbursements, is a lien on the property in question.
Judgment for plaintiff.