In re Ross — 107 N.Y.S. 899

Majority

p. 899

In re ROSS.

(Supreme Court, Appellate Division, Second Department.

December 23, 1907.)

Headnote

Attorney and Client—Lien of Attorney for Fees.

Under Code Civ. Proc. § 66, giving an attorney a lien for services upon his client’s cause of action, which attaches to a verdict, etc., in the client’s favor and the proceeds thereof, in whosesoever hands they may come, an attorney has such lien, where his client is the administrator of an estate, upon the proceeds of a verdict, etc., in favor of the estate, for services rendered in the action or ini the institution thereof.

Appeal from Special Term, Kings County.

Petition by J. Stewart Ross to enforce an attorney’s lien on money . collected for Henry Gehrhardt as administrator. Prom an order appointing a referee, the administrator appeals. Affirmed.

Argued before HIRSCHBERG, P. J., and WOODWARD, RICH, MILLER, and GAYNOR, JJ.

Prank A. Crowe, for appellant.

Samuel Evans Maires (Samuel T. Maddox, Jr., on the brief), for respondent.

This is a proceeding, instituted by petition pursuant to section 66 of the Code of Civil Procedure, to have the lien of an attorney on moneys collected by him determined and enforced. The appellant contends that the petitioner has no lien, for the reason that the moneys were recovered for an administrator of an estate, and hence that the administrator and not the estate is bound.

The rule that the contracts of executors or administrators bind them personally, and not their estate, has no application to this case. The petitioner claims to have recovered for the estate of the appellant money and property as the result of certain actions and special proceedings. Section 66 of the Code of Civil Procedure provides:

“From the commencement of an action or special proceeding, or the service-of an answer containing a counterclaim, the attorney who appears for a party has a lien upon his client’s cause of action, claim or counterclaim, which attaches to a verdict, report, decision, judgment or final order in his client’s favor, and the proceeds thereof in whosesoever hands they may come.”

And it does not matter that the client happens to be an executor or administrator. Matter of the Application of Knapp, 85 N. Y. 284 ; Matter of Kellogg, 96 App. Div. 608 , 88 N. Y. Supp. 1033 , affirmed 180 N. Y. 534 , 72 N. E. 1144 . Of course, the petitioner has no lien unless the money or property was recovered as the proceeds of a verdict, report, decision, judgment, or final order in an action or special proceeding, or as the subject-matter of. an action or special proceeding, and then only for services rendered in such action or proceeding or the institution thereof; and the learned justice at Special Term so

p. 900

held. We do not undertake now to pass upon the merits, but only decide that the appointment of a referee to ascertain the facts was proper.

The order should be affirmed.

Order affirmed, with $10 costs and disbursements. All concur.

Cases cited

In re Knapp 85 N. Y. 284 N.Y. 1881-05-19 p. 899
In re Kellogg 180 N. Y. 534 N.Y. 1905-01-24 p. 899