Wright v. . Wright

70 N.Y. 96 | NY | 1877

The plaintiff commenced this action against the defendant, and it was put at issue and referred. After one brief hearing before the referee, the defendant settled with the plaintiff, and the plaintiff gave him a release of the cause of action, and an agreement that the action be discontinued without costs. Upon plaintiff's attorney thereafter attempting to proceed with the trial of the action, the defendant made a motion at Special Term for an order discontinuing the action. This motion was resisted by plaintiff's attorney upon affidavits showing that before he commenced the action it was agreed between him and his client that he should be paid out of the amount collected a fee contingent upon the recovery, and that at the time of the settlement of the action between the parties, the defendant promised that he would pay all costs to plaintiff's attorney. The court granted the motion on payment by defendant of plaintiff's costs and disbursements to be taxed, and the General Term affirmed this order.

The parties had the right to settle and discontinue the action without providing for the costs of plaintiff's attorney. He had no lien on the cause of action, and could not intervene and insist that the action should proceed for his benefit. (Shank v. Shoemaker, 18 N.Y., 489; Pulver v. Harris, 52 N.Y., 73.) There is nothing in the affidavits showing that the defendant had refused to pay the costs of plaintiff's attorney, or that a bill of such costs had ever been presented to him or demanded of him, or that he is unable to pay them; and it was no part of the agreement that the costs should be paid before or as a condition of the discontinuance of the action. Under such circumstances, the court could, with propriety, have granted an unconditional order of discontinuance. But the plaintiff cannot complain of the condition imposed by the court for his benefit, and if the taxable costs are not such a compensation as his attorney is justly entitled to, he or his attorney may still have a remedy upon defendant's agreement for any counsel fee in addition to the taxable costs, if such agreement was in fact made, and can legally be proved.

The order must be affirmed with costs.

All concur, except RAPALLO, J., absent.

Order affirmed.