103 Misc. 274 | N.Y. Sup. Ct. | 1918
This is a petition by Richard J. Donovan, an attorney and counselor at law, to establish and enforce an attorney’s lien upon a judgment entered in the Supreme Court, July 22, 1913, against the defendant the First National Bank of Albany, N. Y., for the sum of $22,683.87 damages, and $469.40 costs against the First National Bank of Albany, N. Y., and Henry Patton. This judgment was appealed to the Appellate Division of the third department and there affirmed with costs. An appeal was taken to the Court of Appeals and the judgment was again affirmed with costs. On July 6,1917, there were due and owing the plaintiff on said judgment, $28,-067.49 principal, and $849.04 costs. For the principal the plaintiff could have execution against the defendant bank and for the costs against the defendant bank and the defendant Henry Patton. The action was one in accounting and it was determined therein by the judgment that the sum of $22,683.87 was the plaintiff’s share of the proceeds of certain property called the Gasperaux property and that the defendant Patton’s share therein was $36,041.70.
At the time of the institution of the said action, the plaintiff made an agreement with the petitioner whereby he agreed to pay the petitioner for his services in said cause one-half of the amount recovered by
On July 6, 1917, defendant First National Bank of Albany, N. Y., paid the petitioner the said costs amounting to $849.04 and $3,067.49 on account of principal and interest, leaving a balance of $25,000. This is the only payment that has been received by the
This is a special proceeding and cannot be regarded in any proper sense as a motion in the action. Peri v. New York C. & H. R. R. R. Co., 152 N. Y. 526.
In order to give the court jurisdiction in a special proceeding, service must be made upon the party proceeded against in the same manner as is provided for the service of a summons. Code Civ. Pro. § 433.
The defendant Henry Patton as administrator, etc., was in no manner served in this proceeding. He was, as such administrator, in nowise a necessary party to said proceeding. The judgment in the Supreme Court had fixed his rights as such administrator which were nothing; and his attorney, George Lawyer, by appearing and filing an affidavit which contested not alone the jurisdiction of the court over the person, but also the merits of the proceeding, appeared in the action for the said Patton if the said administrator
The attorney for Henry Patton individually and as administrator, etc., having filed an affidavit upon the argument of the motion herein contesting the jurisdiction of the court over the person of the said Henry Patton, and further averring facts to defend against said petition on the merits, and having filed a memorandum subscribed by him as attorney for Henry Patton, adding thereto his office and postoffice address as required by section 421 of the Code of Civil Procedure, in which memorandum he contested the jurisdiction of the court over, the person of the said Henry Patton as a jurisdictional defect; .and further defending against said petition upon the merits, was a voluntary appearance on the part of the said Henry Patton and conferred jurisdiction on the court.in this proceeding. The Court of Appeals in the case of Reed v. Chilson, 142 N. Y. 155, says: ‘ ‘ When a party does not intend to subject himself to the jurisdiction of the court he must appear specially for the purpose of raising the question of jurisdiction by motion, or he may allow the plaintiff to go on and take judgment by default without affecting his rights, since no judgment entered without service of process in some form could bind the defendant, and the question of jurisdiction would protect him at any stage of the proceedings for its enforcement, provided it has not been waived by his own act. But if the defendant elects to come before the court and there try the questions, he cannot afterwards deny the jurisdiction, or be heard to claim that it was not a voluntary appearance.” It is a familiar principle that a party may waive an objection founded upon a want of jurisdiction of the person and he does waive it by a general appearance and proceeding to trial upon the merits.
The respondent Henry Patton, as a reason why the petitioner’s lien should not be established, claims that this petitioner must first resort to his client for payment, the judgment standing for security, and that he cannot resort to it until he has exhausted his remedy against the client or shown that the client is insolvent and that it will be futile to pursue the client; and in support of his contention he cites the case of Smith v. Acker Process Co., 102 App. Div. 170, and the case of Webb v. Parker, 130 id. 93. I do not think that either of these cases is in point. The case of Smith v. Acker Process Co. was a case where a settlement
Section 475 of the Judiciary Law reads as follows:
“Attorney’s lien in action or special proceeding. 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 whosoever hands they may come; and the lien cannot be affected by any settlement between the parties before or after judgment or final order. The court upon the petition of the
In this proceeding the judgment has not been paid; it is under the control and jurisdiction of the court. No equities such as existed in the case of Webb v. Parker or the case of Smith v. Acker Process Co. exist here. There is nothing in the statute which requires the attorney to first proceed against his client before he can enforce his lien and there is no more reason apparent to this court why he should first be compelled to resort to his client than there would be in the case of a mechanic holding an agistor’s lien to be compelled to attempt to collect the claim upon which the lien is founded before he could enforce his lien. Patton himself, by procuring the injunction which was granted in part on the grounds that the defendant’s financial responsibilities were uncertain and that the plaintiff might be unable to realize upon any judgment which he, Patton, might recover therein if the said defendant was permitted to withdraw said funds which were on deposit in the First National Bank of Albany, N. Y., has shown to some extent a claimed insolvency of said Smith. Again, it might be difficult to show the insolvency or inability of Smith to pay. He coneededly has a judgment upon which there remains unpaid, aside from the petitioner’s lien, approximately $14,000. And the mere fact that Patton has brought an action against Smith wherein he claims to recover a large sum of money and has enjoined the payment of said sum to Smith pending the determination of that action affords no presumption that Patton will ultimately prevail therein. If the court thought that the requirements of this proceeding demanded proof of the inability of Smith to pay, it could be supplied at this time under the provisions of section 768 of the Code
The lien attached from the time of the commencement of the action. The Court of Appeals in the case of Fischer-Hansen v. Brooklyn Heights R. R. Co., 173 N. Y. 499, says: “ The common law gave them no right until the entry of judgment, but the statute gives them one from the commencement of the action. If the claim is prosecuted to judgment, or to a decision upon which judgment may be entered, the lien reaches forward and attaches to that also.” So that from the commencement of this action the petitioner’s lien attached to the cause of action and upon the entry of judgment to the judgment itself. The respondent Patton, by bringing another action for an accounting in equity, could not divest his lien. It is only where there has been an appropriation of the fund pro tanto that prior equities are superior to this lien. The court in the case of Bacon v. Schlesinger, 171 App. Div. 505, says: “ ‘ It is the settled doctrine in this State ‘ that an agreement, either by parol or in writing, to pay a debt out of a designated fund, does not give an equitable lien upon the fund, or operate as an equitable assignment thereof.’ [Citing cases.] In Trist v. Child (21 Wall. 441), the court, referring to this subject, said: ‘ But a mere agreement to pay out of such fund is not suEcient. Something more is necessary. There must be an [appropriation] of the fund pro tanto, either by giving an order or by transferring it otherwise in such a manner that the holder is authorized to pay the amount directly to the creditor, without the further intervention -of the debtor. ’ (See also, Addison v. Enoch, 48 App. Div. 111, and Pettibone v. Thomson, 72 Misc. Rep. 486, in which
The petitioner’s claim is for a contingent fee. The agreement for the same was in writing and signed by the plaintiff, Smith. Smith, although made a party to this proceeding, is not contesting- the right of the petitioner to the relief sought nor as to the amount of the lien. The result of the action of Smith v. Patton was that after years of litigation and an enormous amount of work a very substantial amount was recovered. In the case of Ransom v. Ransom, 147 App. Div. 835, which was a case of a contingent retainer of twenty-five, per cent where there was a recovery of $400,000, the majority of the court upheld the agreement, the court saying: ‘ ‘ But when parties are free to contract, their agreement should not be set aside unless fraud has been perpetrated, undue influence exerted, material facts affecting the subject-matter misrepresented or suppressed, or advantage taken of a position of confidence and trust to obtain an unconscionable advantage over the party. So in Werner v. Knowlton (107 App. Div. 158) it was said/ in an action brought to recover for the value of professional services fixed by express contract, approving of a refusal in effect to charge the jury that plaintiffs could not recover unless the jury approved
The respondent Patton urges in his memorandum as a defense to this proceeding that this proceeding demands the vacation or modification of the injunction order granted in the case of Patton against Smith inasmuch as Frank Gf. Smith and the petitioner Donovan in their affidavits contesting said injunction set up the ground that Donovan had a lien on one-half of the judgment and that after considering such proof the justice granted the injunction and that no more proof is now submitted. The justice who granted the injunction order at Special Term wrote an opinion which shows that the only grounds considered by the court in granting such injunction order were the grounds specified in the injunction order, namely, that the defendant’s place of residence and his financial responsibility are uncertain and that the plaintiff may be unable to realize upon any judgment which he may recover herein if the defendant is permitted to withdraw said funds on deposit in the First National Bank of Albany, N. Y. Donovan was not a party to that proceeding, although he made an affidavit in behalf of the defendant therein, and is in nowise precluded by the disposition thereof. I think the proper practice to enforce the lien, under the circumstances of this case, is that the petitioner Donovan have his lien established upon said judgment, the amount thereof being fixed and established as follows, viz.: The amount of the costs, $849.04, plus the further sum of $14,033.74, being one-half of the principal amount of the judgment, less the amounts paid on the said judgment on July 6, 1917, viz.: $3,037.49 of principal and interest and $849.04 costs, leaving the amount of the lien at the sum of $10,966.25, with interest thereon from July 6, 1917, and that an execution
That the respondent Frank G-. Smith be ordered to assign to the petitioner, Richard J. Donovan, the sum of $10,966.25 as of date of July 6, 1917, out of the amount now due on said judgment.
Application granted, with ten dollars costs against the respondent Henry Patton.
Ordered accordingly.