Fenwick v. Metropolitan Street Railway Co. — 173 N.Y. 633

Majority

p. 633

F. Bell Fenwick, Appellant, v. Metropolitan Street Railway Company, Respondent.

Headnote

Fenwick v. Mitehill, 64 App. Div. 62 !, reversed.

(Argued January 16, 1903;

decided February 17, 1903.)

Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered

p. 634

November 1, 1901, upon an order reversing a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term and granting a new trial.

John R. Dos Passos and Donald F. Ayres for appellant.

Henry Melville, John L. Wells and Henry A. Robinson for respondent.

This appeal was argued at the same time and is governed by the same rules of law as the appeal of Fischer-Hansen v. Brooklyn Heights R. R. Co. ( 173 N. Y. 492 ). That case was presented by a demurrer to the complaint and resulted below in a judgment for the defendant, which was reversed upon appeal to this court. This case was tried at Special Term, but the judgment there rendered in favor, of the plaintiff was reversed by the Appellate Division and a new trial was granted. Each case involved the question whether the lien of the attorney of record for the plaintiff in an action extends to the fund created by a settlement made by the parties in good faith without his consent. We held that it did and that the defendant in paying over the fund without providing for the lien paid at its peril. While the cases differ somewhat in their facts they are controlled by the same principle and must result in the same judgment. For the reasons stated in the opinion rendered in the Fiseher-Hcmsen case we reverse the judgment of the Appellate Division and affirm the judgment of the Special Term, with costs in all courts.

Parker, Ch. J., Bartlett, Haight, Martin, Vann and Werner, JJ., concur; Gray, J., not sitting.

Judgment reversed, etc.

Cases cited

Fischer-Hansen v. Brooklyn Heights Railroad 173 N. Y. 492 N.Y. 1903-02-17 p. 634