1 E.D. Smith 598 | New York Court of Common Pleas | 1852
Lead Opinion
This is an appeal from an order made at chambers. The defendant, Wordsworth, recovered judgment against the plaintiff for costs. The plaintiff paid the judgment to Wordsworth, and it was regularly satisfied of record. Wordsworth’s attorney moved to vacate the satisfaction, claiming to have a lien upon the judgment for his costs, of which it appears he had given due notice to the plaintiff before the payment of the judgment. The application was denied, upon the ground that an attorney has no longer any lien for his costs, and the question to be determined upon the present appeal, is, whether the code has abolished the attorney’s lien. The point came up in Davenport v. Ludlow, 4 How. P. R. 337, and Benedict v. Harlow and Wendell, 5 How. P. R. 350 ; and Justice Shankland in the one case, and Justice Willard in the other, were of opinion that the lien no longer existed; but both cases were decided upon other grounds. In the latter case, Justice Willard says: “ The rea
The attorney’s lien upon the judgment, like that of the seaman upon the ship, is an exception to the general rule as respects the element of possession, for the judgment is a record and under the control of the court, and there can be no actual possession in either party. There exists no reported case showing when or for what reason it was originally allowed. “ Any attempt,” says Mr. Cross, in his work on lien, “to trace its origin or establish the period of its introduction, is useless.” Sir James Barrow, who was present during the argument of Wilkins v. Carmichael, 1 Doug. 100, mentioned to Lord Mansfield that the first instance of an order of that kind in the King’s Bench, was in the case of one Taylor, of Cresham, about the time of a contested election for that borough, to which Lord Mansfield replied, that he had himself argued the question in chancery. In deciding Wilkins v. Carmichael, he said that the practice then was not very ancient; that it
The lien of the attorney upon the judgment for his costs, was recognized in this state at an early period. And in Spence v. White, 1 Johnson’s Cases, 102, and Pinder v. Morris, 3 Cai. 165, the rule of the common pleas of holding it subject to the equitable rights of the parties, was adopted in preference to the rule of the King’s Bench. Bythe law, therefore, as it existed in this state before the passage of the code, an attorney had a lien upon the judgment for his costs, subject to the equitable rights of the parties; and if the party against whom the judgment was recovered paid the costs to the opposite party, after he had received notice of the attorney’s lien, it was regarded as a fraud upon the attorney’s rights, and the court would enforce the judgment to the extent of the attorney’s lien. (People v. Manning, 13 Wen. 652 ; Martin v. Hawks, 15 J. R. 405.)
Has this right been impaired or taken away by the code ? Two reasons are assigned by the learned justices, from which they infer that it no longer exists. First, because the costs are now given to the party, and not to the attorney; and second, because his compensation is no longer measured by the fee bill, but rests in contract. In respect to the first, the code has made no change in the law. The costs always belonged to the party, and not to the attorney. Before the statute of Gloucester, (6 Edward I., Evans’ Statutes, P.,) the prevailing party was not entitled to recover costs; but though costs were not given by the common law eo nomine, they were always included, or taken into account, in fixing the quantum of damages, in all actions where damages were recoverable; and the statute of Gloucester was passed to enable the prevailing party to receive them, not only in actions where damages were recoverable, but in other actions. The words of the statute are: the demandant
It remains but to inquire, whether the abolition by the code of all statutes regulating the fees of attorneys, and of ah rules or provisions of law preventing an attorney from agreeing with his client for his compensation, and leaving the measure of such compensation to the agreement of the parties, express or implied, has affected the attorney’s lien. By the English practice, the amount that the prevailing party was entitled to recover for the services of an attorney, was determined by the taxing officer, and included in the judgment; and the amount thus taxed, in the absence of a special agreement, was regarded as the proper measure of compensation between the attorney and his client. In other cases, the party was bound to have the attorney’s bill taxed within a month after it was served upon him, and the bill thus taxed was taken as the measure of compensation in an action brought by the attorney against his client to recover for his services; or if he omitted to tax it, the bill was deemed conclusive as to the reasonableness of the charges, and he was not permitted to dispute the items upon the trial. (Williams v. Firth, 1 Doug. 197 ; Hopper v. Tile, id. 198, and note ; Anderson v. May, 2 B. and P. 237.) In this state, the amount which an attorney might claim for his services, or which might be allowed for such services by the court, was made a matter of statute regulation, by an act passed the 18th of February, 1789, although
The order was appealable. It was made upon a summary application after judgment, and in a matter affecting a substantial right. (Sec. 249, 5.)
Concurrence Opinion
I concur in the result to which Judge Daly has arrived.
I do not assent to the above conclusions, for the reasons stated by me on the motion originally. It is unnecessary to repeat them here, as my brethren are agreed that the attorney’s lien still remains.
Order appealed from, reversed, and the satisfaction of the judgment vacated, to permit the enforcement of the attorney’s lien.