43 N.Y.S. 206 | N.Y. App. Div. | 1897
The material facts of this case are the following : In 1889 certain real estate in the city of New York was conveyed to J. Adriance Bush by Kate B. West, the wife of the present plaintiff. In 1891
This action is brought by Stephen A: West to enforce that trust and to compel Mr. Bacon to convey the property to Mr. Ridgway, another attorney, who brings this action for the plaintiff. The court below ordered a judgment requiring the conveyance to be made, but only upon, the plaintiff satisfying Mr. Bacon for certain demands claimed by the latter to be a charge upon the property, and consisting, first, of $294.02 awarded to him as trustee, being charges accrued in the administration of the trust and commissions, and also the sum of $500 for services-rendered in the suit of Kate B. West against Bush, which, as'above stated, resulted substantially in the recovery of the real estate by the plaintiff and the establishment of
The judgment with reference to the $500 cannot be sustained upon any notion of an equitable power in the court to charge upon this land any claim which the plaintiff’s attorneys might have against him for services rendered generally upon a professional employment. The only ground upon which it can he sustained is that the attorney had some lien upon the land, alien to enforce which he would be entitled to resort to the property. If it be a good and enforcible lien, it was competent for the court to settle the matters in controversy between the .parties by the decree entered herein and thus save any further litigation. The real question, therefore, is whether there is any such lien as to this $500. No objection can arise on the pleadings with reference to this point, because it is specifically set up in the answer that the defendant demands the $500 as a counterclaim, and that the property in question is part of the proceeds of a litigation in a certain action, being that above referred to. The defendant claims the lien for his fees as attorney in that action as well as in other litigations wherein the defendant has rendered service to the plaintiff as his attorney, but the property cannot be made liable for any general indebtedness of the client to the attorney. The plaintiff in this action was adjudged to he the owner of the premises by the judgment in the action brought by his wife against Mr. Bush. It was as a result of the professional services rendered by Mr. Bacon or his firm to the defendant that the right and title to that property became fixed in the defendant and the conveyance was directed to be made to him or his appointee. Thus the premises were recovered for the defendant in that action. He had neither title nor possession, hut acquired them both virtually by the judgment for he has been in actual possession since the judgment was entered. He took the premises as the proceeds of the action, and, by section 66 of the Code of Civil Procedure, the attorney had a lien upon his client’s counterclaim which attached to the decision, to the judgment in his client’s favor, and to the proceeds thereof, il in whosoever hands they may come.” The lien of the attorney
The lien can be allowed only to the extent of the value of the services rendered by the defendant or his firm in the one action of West v. Bush, in which the property was adjudged to belong to the defendant. West, and, according to Mr. Bacon’s own testimony, the total value of such services is §450 and not §500.
The judgment should, therefore, be modified by deducting the sum of fifty dollars from the amount allowed as a charge upon the property and, as thus modified, affirmed, without costs. .
Btjmsey and Williams, JJ., concurred; Yah Bbuht, P. J., dissented.
Judgment modified as directed in opinion and, as thus modified, affirmed, without costs.