Bacon v. Schlesinger

Headnote

Bacon v. Schlesinger, 171 App. Div. 503 , affirmed.

Appeal from a judgment entered March 20, 1916, upon an order of the Appellate Division of- the Supreme

Court in the first judicial department, reversing a judgment in favor of defendants entered upon a dismissal of the complaint by the court on trial at Special Term and directing judgment in favor of plaintiff. Plaintiff was retained *by Elizabeth Schlesinger, as administratrix of Mark Schlesinger, to represent her upon the accounting of the executors of Abraham Schlesinger and protect the rights of the estate of her intestate therein. There was a written retainer allowing plaintiff for. his services one-third the amount found due the estate. This action was brought to enforce the plaintiff’s lien upon the amount found due. The defendant Leo Schlesinger asserted a claim to this fund arising out of a contract in writing entered into between the said Leo Schlesinger and his four brothers of whom the decedent Mark Schlesinger was one. The trial justice held that the plaintiff’s lien upon the fund was inferior to that of Leo Schlesinger and granted judgment for the defendant. The Appellate Division reversed and held that unless Leo Schlesinger had a claim which was a valid charge against the share of Mark Schlesinger in his father’s estate at the time when the plaintiff’s lien attached, his claim was not entitled to priority over the attorney’s hen. It was not sufficient for such claim to be a general debt against the client. It must, in order to supersede the attorney’s hen, be a prior charge against the specific fund upon which the attorney’s hen had attached.