67 How. Pr. 267 | City of New York Municipal Court | 1884
The claim in suit belonged to the plaintiff, and he and the defendant had the right to meet, compromise and adjust it, and so far as the plaintiff is concerned, the settlement is conclusive. . As to the plaintiff’s attorney, a
If a settlement has been effected, the parties made it with knowledge of the law which gave the attorney a lien upon the cause of action and the power to enforce, it, and they cannot complain if he insists upon his right to do sq. But the lien cannot be enforced upon a mere motion, like the present, to compel the defendant to pay the plaintiff’s attorney his taxable costs by awarding a judgment therefor. The answer is substantially a general denial, and puts in issue the existence of the plaintiff’s cause of action. The defendant is entitled to have this issue tried by a jury before he can be mulcted-in costs. How far the amount paid in settlement may be taken as an admission of indebtedness must be determined at the trial. If the jury find that the plaintiff had no cause of action there will be nothing to which the lien of the plaintiff’s attorney can attach. If, on the other hand, the jury find for the plaintiff, the lien of his attorney will attach to the verdict and the judgment entered upon it. The amount of the lien will presumptively, but not necessarily, be the amount of the taxable costs (Tullis agt. Bushnell, supra, and cases cited). If the plaintiff’s attorney claims more, the amount may be determined by the court and the attorney allowed to enforce the judgment to the sum fixed.