108 N.Y.S. 909 | N.Y. App. Div. | 1908
One John Sullivan, a resident of the county of New York, died on the 23d day of February, 1886, leaving a last will and testament which was duly admitted to probate, by which the testator left all his estate, real and personal, to trustees with certain directions as to the accumulation of income, and upon the termination of the trust directing the trustees to divide the property between the children of the testator’s son James and his illegitimate son, 16 to be divided between them per capita, share and share alike.” This trust was to continue during the natural life of the testator’s wife and his son James'Sullivan. It appears that the testator’s wife has since died, but his son James Sullivan is still living. The plaintiffs are two sons of the said James Sullivan and upon the death of their father would be entitled to a share of the trust fund, but under the terms of the will would not receive anything until the death of their father. The petitioner, an attorney at law, was consulted by one of the plaintiffs as to his rights under the will and subsequently on the 16th of January, 1906, an agreement was signed between the two plain
The record before us on this appeal consists of 1,015 printed pages; yet the only question presented to the referee or to the court was the amount of compensation due to the petitioner from the plaintiffs. Many pages of the record are taken up with opinions of this court on other appeals, and copies of records and other documents which are entirely immaterial and have no possible bearing on the question. All-the facts necessary to pass upon the question
The proceeding is under section 66 of the Code of Civil Procedure. By that section an attorney is given a lien “ upon his client’s cause of action, claim or counterclaim,” which lien cannot be affected by any settlement between the parties whatever, before.or after judgment or final order, and “ the court upon the petition of the client or attorney may determine and enforce the lien.” It is the court that is given authority to determine and enforce the lien, and in such a proceeding under section 1015 of the Code of Civil Procedure the court may direct a reference to take an account and report to the court thereoh where it is necessary to do so for the information of the court, and also to determine and report upon a question of fact arising in any stage of the action upon a motion or otherwise, except upon the pleadings. The court under this provision could refer it to a referee to take an account or report upon a. question of fact arising in the proceeding, and upon the question of fact having been' determined by the referee the court could then proceed and grant such order as was necessary to “ determine and enforce ” the lien of the attorney if one existed. The respondent makes the point — and it is the only ground upon which he seeks to sustain this order — that as no case had been made or settled, and no exceptions were taken or filed to the court’s decision, there was nothing for this court to review. But this contention is based upon a misapprehension as to the nature of the proceeding. It is not an action, nor is the appeal from a judgment rendered after the trial of an issue of fact in an action, and, therefore, section 997 of the Code of Civil Procedure has no application. In Matter of Cartier v. Spooner (118 App. Div. 342) we expressly held (hat a proceeding against an attorney and a proceeding under section 66 of the Code of Civil Procedure was a special proceeding and not an action, and that' no formal judgment could be entered thereon; that “in a proceeding of this character the court must determine the' controversy, and it may order a reference only for the purpose’ of assistance to itself in that regard. It cannot shift the whole matter to a referee. If a reference be ordered, the matter must come back to the court on the
An appeal from an order adopting the report of a referee upon the facts and granting to the petitioner relief, brings before this, court for review the determination of the Special- Term both upon the facts and the law, and we are required upon such an appeal to correct any error committed by the. Special Term and grant to either party the relief to which he is entitled. The referee by his report finds the contract under which the petitioner proceeded and brought the action. By that contract the petitioner was authorized to institute such a proceeding as may be necessary to enforce the rights of the plaintiffs or to protect • their interest in the said estate. He was also authorized to commence an action at law or in equity for an accounting and for a construction of the will, and the petitioner was to be paid twelve and one-lialf per cent on any amount which the plaintiffs should recover or be-entitled to under any decree or judgment in any action or proceeding instituted by the petitioner; or, in case of settlement or adjustment of the plaintiffs’ rights or interests in said estate, the petitioner was to be entitled to the equal sum of twelve and one-half per cent each on the amount to which the plaintiffs would be entitled or would recover by decree or judgment were it not for such settlement or adjustment. The petitioner was also to be entitled to twelve and one-lialf per cent from each plaintiff on any amount of the accrued income to which they might be entitled. His compensation was by his contract, whether the.action was or was not settled, limited to twelve and one-lialf per cent of the surplus income in the hands of the trustees to which his clients were entitled. Under the order of
The order must, therefore, be modified so. as to award to the petitioner twelve and one-half per cent of the plaintiffs’ interest in such surplus income, the amount of which can be determined upon the settlement of the order. So much of the order also as directs a judgment to be entered and docketed must be stricken put. The form of the order will be an adjudication that the petitioner has a lien upon the surplus income in the hands of the trustees for the amount found to.be due him under his agreement with the plaintiffs, and with authority to the petitioner to take such further proceedings as may be necessary to enforce such lien.
The order as thus modified will be affirmed, without costs-of this appeal.
Patterson, P. J., Clarke, Houghton and Scott, JJ., concurred.
Order modified as directed in opinion and as modified affirmed, without costs. Settle order on notice.