147 N.Y.S. 806 | N.Y. App. Div. | 1914
The plaintiff appeals from a judgment that dismissed his complaint. He brought an action to recover damages for a personal injury alleged to have been caused by the negligence of the defendant while plaintiff, was one of its employees. The accident happened on October 18, 1912. On December fifth of the same year he served a notice upon the defendant under the provisions of the Labor Law (Consol. Laws, chap. 31 [Laws of 1909, chap. 36], art. 14, as amd. by Laws of 1910, chap. 352), and on or about December tenth he began this action. In his complaint he alleged the service of said notice and claimed liability on the part of the defendant under the provisions of the statute aforesaid. While the action was at issue he gave a general release to the defendant for a consideration of $2,500, which he received. The defendant served a supplemental answer, setting up the release as a bar to the continuance of the action. Nevertheless the plaintiff, or his attorney, brought on the action for trial. At the trial the parties submitted to the trial court a formal written stipulation which had been made between them. In this stipulation the defendant admitted the allegations of the complaint, except as to the amount of the damages therein claimed, though admitting “ that the plaintiff has been damaged in a substantial amount.” The plaintiff admitted the execution and delivery of the release. The defendant admitted “ that the plaintiff’s attorney has and has had since the commencement of this action a lien for services performed and to be performed; and that the plaintiff’s attor
On this appeal the plaintiff or his attorney contends that the release was not “valid,” and hence was no bar to the maintenance of the action. This claim is based upon the provisions of chapter 603 of the Laws of 1913, which took effect May 21, 1913, and which added to the Judiciary Law (Consol. Laws, chap. 30; Laws of 1909, chap. 35) a new section, number 480. This statute reads as follows: “Settlement of actions for personal injury. If, in an action commenced to recover damages for a personal injury or for death as the result of a personal injury, an attorney having or claiming to have a lien for services performed or to be performed, who shall have appeared for the person or persons having or claiming to have a right of action for such injury or death, no settlement or adjustment of such action shall be valid, unless consented to in writing by such attorney and by the person or persons for whom he shall have appeared, or approved by an order of the court in which such action is brought.”
There are two questions presented for decision on this appeal, as follows: First, is this statute constitutional? If so, does it affect the cause of action which was vested in the plaintiff before the enactment ? I shall take up for consideration the first question in its order. At common law an attorney had no lien for services upon his client’s right of action prior to the entry of a judgment in favor of the client, though a practice had grown up in the courts permitting an attorney to continue an action to recover his costs in the face of a collusive settlement between the parties. (Randall v. Van Wagenen, 115 N. Y. 527; Coughlin v. N. Y. C. & H. R. R. R. Co., 71 id. 443.)
By chapter 542 of the Laws of 1879, section 66 of the Code of Civil Procedure was amended by adding thereto words as
The judgment should be affirmed, with costs.
Jenks, P. J., Burr and Rich, JJ., concurred; Thomas, J., not voting.
Judgment affirmed, with costs.