70 N.Y. 98 | NY | 1877
Plaintiff's attorney claims that it was agreed between him and his client that he should receive, in addition to the taxable costs as a counsel fee, twenty-five per cent of the amount of any recovery in this action. The recovery was upwards of $1,000, and pending an appeal from the judgment, the defendant settled with the plaintiff and satisfied the judgment and procured an acknowledgment of the satisfaction thereof, and caused the judgment to be satisfied of record. The attorney then made a motion to have the satisfaction of the judgment cancelled so that he could enforce the judgment for his costs and counsel fee.
The motion was granted at Special Term, but the order was upon defendant's appeal reversed by the General Term, and the plaintiff has appealed to this court.
The attorney had a lien for the amount of his costs and agreed compensation upon the judgment, and to that extent may be regarded as an equitable assignee of the judgment. (Marshall v.Meech,
To nullify a settlement honestly made with the plaintiff, the proof of the notice should be satisfactory, and not depend upon uncertain inferences. We will assume, without deciding it, that a notice to defendant's attorney would have been sufficient. The only notice claimed is one given to his attorney, *101 and that was simply inserted in a stipulation for time to answer, as one of the conditions upon which time was granted. The stipulation was not acted upon, and was returned. It was an unusual paper to contain such a notice, and it does not satisfactorily appear that it came to the attention of defendant's attorney. There is no rule of law imputing to the attorneys knowledge of the contents of the paper, when they did not actually have it. They were not bound to read the paper, and become acquainted with all its contents.
We must, therefore, hold that the settlement with the plaintiff was legal and binding, and the order must be affirmed, with costs.
All concur, except RAPALLO, J., absent.
Order affirmed.
