44 N.Y.S. 692 | N.Y. App. Div. | 1897
The action was for the foreclosure of a purchase-money mortgage. The answer of the defendants, who wereobligors on the bond, alleged that when the bond was given it was orally agreed that the bond should be a mere formality, never to be enforced. The trial of the action was commenced in January, 1S96, at which time the plaintiffs moved for judgment on the pleadings, but the court decided that the answer set up a good and sufficient defense. The defendants put in their evidence, and at the-close of the defendants’ case the motion for judgment was renewed, and denied; and the trial was then adjourned to a later date, previously to which the parties, without the knowledge of the defendants’ attorney, agreed upon a settlement and discontinuance without costs. A motion for leave to discontinue was made, and granted upon condition of payment of costs and allowance within 20 days, the trial being further adjourned to cover the time allowed for compliance with the order. From this order the first appeal is taken. The plaintiffs also moved for a resettlement of the above-mentioned order. This motion was denied, and the second appeal-is from this order. The costs allowed by the first order were never • paid, and the defendants’ attorney moved to set aside the settlement and consent for discontinuance, so far as to permit him to proceed to judgment with the action in order to secure the payment of his costs and fee. This motion was granted, and from it the third appeal is taken.
Section 66 of the Code of Civil Procedure provides for an attorney’s lien upon his client’s cause of action or counterclaim, and that such lien “cannot be affected by any settlement between the parties before or after judgment.” The answer does not set up facts to-show a counterclaim, and the defense is not pleaded nominally as-a counterclaim. It is stated to be a defense. Upon such a defense as is set up, there cannot, in the nature of things, be a lien. While-an attorney has a lien upon a counterclaim, he has none upon a defense; and the third order, therefore, was erroneous. In this-view, it is not necessary to decide whether or not the settlement between the parties was collusive.
It appears by the record that the attorney has been paid by his client a part of the costs and fee. For the remainder he has his resort to his client, but as the parties to the action settled it, and no benefit can result to the attorney from continuing it, the three-several orders must be reversed, without costs, and the motion to-discontinue granted, without costs. All concur.
