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Neu v. Brooklyn Heights Railroad

113 A.D. 446 Court Second Department, Decision date 1906-06-08 English

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p. 446
Jacob Neu and Alfred J. Gilchrist, Copartners Doing Business under the Firm Name of Neu & Gilchrist, Respondents, v. The Brooklyn Heights Railroad Company, Appellant, Impleaded with Patrick M. Butler, Defendant.
Second Department,
June 8, 1906.

Headnote

Attorney’s lien'— recovery cannot he in excess of ¡sum due under contract with, client. /
In an action to epforce their lien against" defendants who have settled with their client, attorneys cannot recover more than the sum to which they were entitled under their contract with the client. . •
Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Kings on the 22fi day of December, 1905, upon the decision of the court rendered after a trial at .the Kings County. Special Term.
Action to enforce an attorney’s lien after a settlement made by the defendant.
I. R. Oeland [George D. Yeomans with him on the brief], for the appellant.
Alfred J. Gilchrist, for the respondents.

The parties consented to try the issues as if in an action for money had and received. The attorneys under their agreement were entitled to one-half of the sum as adjusted. The sum paid in settlement as established by the Uncontradicted evidence is $450. This.must be taken as the basis of the attorneys’ claim (Pilkington v. Brooklyn Heights R. R. Co., 49 App. Div. 22 ), and, therefore, the judgment could not exceed seventy-five dollars. The judgment must be reversed and a new trial granted, unless the plaintiffs'within twenty days consent to a reduction .thereof to seventy-five dollars without costs, in which case it is affirmed, without costs.

■ Hirschberg, P. J., Woodward, Jerks, Hooker and Miller, JJ., concurred.

Judgment reversed and new trial granted, Costs to abide the event, unless the plaintiffs within twenty days consent to a reduction of the recovery to seventy-five dollars without costs, in which case it’ is affirmed, without costs.

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