Tynan v. Mart

The plaintiff brings action to foreclose a lien which he alleges now subsists, by virtue of section 66 of the Code of Civil Procedure, upon a cause of action in which the plaintiff’s assignor, an attorney, represented one Anna Gross, who brought action thereon in the Municipal Court of the' City of New York, and subsequently compromised and settled said action without paying the plaintiff’s assignor for his services as attorney. The defendant demurs, on .the ground that the complaint, which sets forth the above facts, fails to state a cause of action.

Although it has several times been held that an attorney’s lien could not be enforced in the Municipal Court of New York City, it does not appear to have been decided whether an attorney was allowed a

“In those courts there are no attorneys in the sense in which that term is used'in courts of record (Fox v. Jackson, 8 Barb. 355 ), and it is only in respect of the party’s character of attorney or solicitor that the claim to a lien exists. * * * No one will contend that a lien exists for services rendered by an attorney in a justice’s court.”

This decision, however, and the reasoning upon which it rests, was completely superseded by subsequent legislation making Surrogates’ Courts courts of record and expressly recognizing the rights of parties to appear therein by attorney. Matter of Regan, 167 N. Y. 338 , 342, 60 N. E. 658 . The application of section '66, above mentioned, to courts which are not of record, but in which only duly admitted attorneys may practice, is presented, therefore, as a new question.

In its present form section-66 of the Code of Civil Procedure provides that “the attorney who appears for a party has a lien upon his client’s cause of action, claim or counterclaim” from the moment he appears in the action. No limitation is made by the section as to courts in which the cause of action shall be prosecuted, utiless possibly one can be spelled out of the provision that “the court, upon the petition of the client or attorney, may determine and enforce the lien.” Strong reasons appear against implying such, a limitation. It has been held that this section should be liberally construed. Matter of Pieris, 82 App. Div. 466 , 81 N. Y. Supp. 927 ; affirmed upon the opinion of Appellate Division in 176 N. Y. 566 , 68 N. E. 1123 ; Fischer-Hansen v. Brooklyn Heights R. R. Co., 173 N. Y. 492 , 499, 66 N.

“A party should not run away with the fruits of a cause without satisfying the legal demand of his attorney, by whose industry, and in many instances, at whose expense, those fruits are obtained.”

Although the accompanying provisions of the Code of Civil Procedure afford the attorney a remedy by petition, this remedy is merely cumulative, and accordingly separate and distinct actions may still be brought to foreclose the lien afforded by section 66. Fischer-Hansen v. Brooklyn Heights R. R. Co., supra; Smith v. Acker Process Co., 102 App. Div. 170 , 92 N. Y. Supp. 351 . In line with this rule the courts have consistently discouraged the continuance of the action upon which the attorney claimed a lien when the sole purpose of continuance is to ascertain the amount of the lien. Fischer-Hansen v. Brooklyn Heights R. R. Co., supra; Smith v. Acker Process Co., supra; Sullivan v. McCann, 113 App. Div. 61 , 98 N. Y. Supp. 947 .

Such being the rule, it follows that the attorney is not obliged to bring his action upon section 66 in the same court where his client’s cause of action may proceed. Thus in Matter of Pieris, supra, it was held that the Supreme Court could entertain proceedings to ascertain and determine the amount of an attorney’s lien for services rendered in a proceeding in a surrogate’s court. The conclusion from these authorities is that the attorney is not deprived of his lien by reason of the inability of the court in which his client’s cause of action was prosecuted to enforce the lien, and consequently that he may begin action in any court having jurisdiction to enforce such a lien, for the purpose of obtaining the relief granted by section 66 of the Code of Civil Procedure. Such a conclusion is induced in the present case by a further fact that in the Municipal Court of New York City none but duly admitted attorneys who. are authorized to appear before any court in the state may practice. In view of the qualifications thus required of practitioners before this court, they should not be denied the protection and benefits which section 66 of the Code of Civil Procedure by its express language confers upon every practitioner "who appears for a party.” Unless attorneys practicing in the Municipal Court of New York City are afforded such protection they will" be reluctant to bring actions in that court, and will tend to increased litigation in the superior courts, for the relief of which the Municipal Court of New York City exists.

Demurrer overruled.