76 N.Y.S. 266 | N.Y. App. Div. | 1902
The learned trial court, in making disposition of the issue of law raised by the demurrer, seems to have based its conclusion upon the ground that the complaint did not plead an equitable cause of action, for the reason that the plaintiff had no lien upon the fund in his hands and also because he had an adequate remedy at law, and, further, that the complaint could not be sustained as an action at law to recover for services rendered without disregarding the substantial averments of the complaint and the prayer for relief. It is not necessary in support of the conclusion at which we have arrived to determine whether the averments of the complaint, coupled with the prayer for relief, state a legal cause of action or not. Nor is it abso
We are also of opinion that sufficient facts are alleged in this complaint' to establish a lien in favor of the plaintiff upon the fund in question, at least to the extent of his claim for expenses and disbursements paid out by the plaintiff in its management. In Muller v. Pondir (55 N. Y. 325) it was said by. Judge Allen : “ An agent may have a lien on the property or funds of his principal for moneys advanced or liabilities incurred in his behalf; and if moneys have been advanced or liabilities incurred upon the faith of the solvency of the principal, and he becomes insolvent while the proceeds and fruit of such advances or liability are in the possession of the agent or within his reach, and before they have come to the actual possession of the principal, within every principle of equity the agent has a lien upon the same for his protection and indemnity. If necessary to his protection, the plaintiff would have been permitted to repudiate the agency and assume that position" which would best protect himself from loss by reason of the insolvency of his principal.” The evident reason why the lien is given is that by the expenditure made and liabilities assumed the agent has benefited the principal, protected the fund, oz*, at least, improved the principal’s condition. As the irresponsibility of the principal would defeat the right of the agent in securing reimbursement, equity raises out of such situation for his protection a lien upon the fund. It must follow, therefore, that whenever a condition exists which would cause loss to the agent, if he parted with the funds in his hands, equity will interpose so far as to protect the agent’s right in the premises and raise out of the condition a lien upon the fund. The complaint -avers that the defendants are residents of England, and that if the plaintiff parts with the possession of the money it will be removed beyond the jurisdiction of the court and its process. In such case, the same reasons exist for supporting a lien upon the fund as wozzld exist in the case of insolvency. It seems eleai’, therefore, that
It follows that both the final and interlocutory judgments should be reversed, with costs to the plaintiff in this court and in the court below, and leave given to the defendants to answer within twenty days upon the payment of such costs.
O’Brien, Ingraham and McLaughlin, JJ., concurred; Van Brunt, P. J., concurred on first ground stated in opinion.
Judgments reversed, with costs in this court and in the court below, with leave to the defendants to answer within twenty days on payment of such costs.