Majority
The respondent, having as the appellants’ attorney instituted an action to enforce a cause of action of appellants against a third party, had a charging lien upon the cause of action for bis services rendered in the action. (Judiciary Law, § 475 [Cons. Laws, ch. 30]; Matter of Heinsheimer, 214 N. Y. 361 , 365.)
The appellants moved for a substitution of attorneys and asked that the value of respondent’s services be determined. Respondent relied on his lien and sought to have the value of his services fixed at $500. An order is before us which fixed respondent’s lien at twelve and one-half per cent of any recovery secured or settlement made, but in no case less than $400.
Appellants urge that respondent’s hen cannot be fixed on a percentage basis. Respondent is entitled to compensation on the basis of quantum meruit. A percentage allowance does not fall within the description of quantum meruit. The amount of recovery or settlement wifi depend on factors with some of which respondent has no concern. However, the terms of the retainer contract, now at an end, may be taken into consideration' in fixing the value of the lawyer’s services. (Matter of Tillman, 259 N. Y. 133 ; Matter of Montgomery, 272 N. Y. 323 .)
Lehman, Ch. J., Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ., concur.
Ordered accordingly.
Cases cited
- In re Heinsheimer 214 N. Y. 361 at 365 p. 409
- In re Tillman 259 N. Y. 133 p. 409
- In re the Estate of Montgomery 272 N. Y. 323 p. 409