Johanson v. City of New York — 71 A.D. 561

Majority

p. 561

Amanda Johanson, Respondent, v. The City of New York, Appellant.

Headnote

Attorney's lien on the cause of action — a release by the attorney of one joint tort feasor releases the other.

A woman who had sustained personal injuries, by tripping over a street car rail laid in a public street in. the city of New York which had been permitted to remain at a dangerous height above the surface of the street, brought an action against the railroad company to recover damages for such injuries and a similar action against the city of New York, and agreed to pay her attorneys, as compensation for their services, one-half of the recovery and costs. Thereafter the plaintiff, without the knowledge of her attorneys, settled with the railroad company for the sum of §500, §250 of which was paid to the plaintiff and §250 to her husband.

Subsequently the railroad company paid the plaintiff’s attorneys the costs of the action and §125 which was stated to be on account of .their lien, and took a release from the attorneys, in which the latter attempted to reserve all right to proceed against the city for the balance of the lien.

Held, that the attorneys, having released the railroad company, one of the joint tort feasors, from all claims and demands on account of their lien, were not entitled to have the action against the city of New York continued for the benefit of such lien.

Appeal by the defendant, The City of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 27th day of February, 1902, ordering “ that plaintiff’s attorneys have a lien on this cause of action to the extent of 50 per cent of any judgment which may be rendered herein; ” “ that the release pleaded in the supplemental answer herein was obtained in disregard of the rights of plaintiffs attorneys and is void as to them, ” and directing that the action be continued for the benefit of the said lien.

Theodore Connoly, for the appellant.

Edward M. Bliven, for the respondent.

The complaint in this action claims to recover damages for personal injuries sustained by the plaintiff by tripping over a street car rail laid in Fourteenth street, in the city of New York, which had

p. 562

been permitted by the city to remain at a dangerous height above the surface of the street. On the 7th of December, 1898, the plaintiff brought suit against the Central Crosstown Railroad Company to recover for the damages sustained, and subsequently this action was brought to recover damages for the same injuries.

When the action against the Central Crosstown Railroad Company was about approaching trial a settlement was made between the company and the plaintiff therein, Amanda Johanson, by which the company paid to the husband of the plaintiff $250 and an additional $250 to the plaintiff. This settlement was made without the knowledge of the plaintiff’s attorneys. Before either suit had been brought the plaintiff made 'a contract with Peter Flint, one of her attorneys in this action, agreeing to pay him for his services in •prosecuting the suits to judgment, by himself or by- associate counsel, one-half the recovery and costs. Upon demand of the said attorneys the defendant railroad company, after its settlement, with the plaintiff, paid the plaintiff’s attorneys the costs of that action and $125, which was stated to be paid on account of their lien, taking a release from the plaintiff’s attorneys, in which the latter attempted to reserve all rights to proceed for the balance of the lien as against the city. The supplemental answer served in this action sets -up the above release by the plaintiff to the railroad company as a bar to this action. The plaintiff’s attorneys ■ thereupon made a motion to have-the settlement between the plaintiff and the defendant railroad company adjudged void as to them, on the ground that it was fraudulent as to them, and to have this action continued for the benefit of the lien. This motion was granted, and in the order thereupon entered many of the issues presented in the action were determined against the defendant. From such order the present appeal is taken.

It will not be necessary to comment upon the agreement made between the plaintiff’s attorneys and the plaintiff in regard to her share of the recovery. It seems to us that it might well be held that an agreement by which an attorney was to receive one-half of the recovery was an unconscionable one and would not be enforced by the courts. But it is not necessary to place our determination as to.this appeal upon that question. It appears that the Centra] Crosstown Railroad Company and the defendant in this action

p. 563

were joint tort feasors. The company constructed, and the city allowed to exist, the obstruction complained of. The attorneys have released the railroad company, one of the joint tort feasors, from all claims and demands on account thereof. It is too familiar a principle of law to need citation of Authority that the release of one joint tort feasor releases all.

The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Ingraham, McLaughlin and Hatch, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.