Ferris v. Lawrene

The appellant urges that the alleged agreement between the parties is annexed to the complaint and expressly made a part thereof, and that it's legal effect must be gathered from the instrument itself, and not from allegations in the complaint characterizing its legal effect, and the argument deduced is that the instrument does not assign or purport to assign any interest in said property or any interest in any amount to be awarded, and that any allegations in the complaint that the defendant Eawrene did' assign to the plaintiff any interest in the premises or in the award therefor in the proceeding must be disregarded, citing Black v. Homeopathic Mutual Life Ins. Co., 47 Hun, 210 . Assuming that this is the law, and that we are to disregard the allegation of the complaint that the instrument assigned something to-the plaintiff, we are unable to see how this has any particular bearing upon the case, if the contract of employment set forth in such agreement was between an attorney and his client, for in that event the statute (section 475 of the .judiciary law [Consol. Laws, c. 30]) provides that:

“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 the lien cannot be affected by any settlement between the parties before or after judgment or final order.”

It cannot be doubted that the contract of employment, made a part of the complaint, shows upon its face that it is a contract between an attorney and his client, and the provisions of the judiciary law above quoted have been construed to give the client a lien upon the fund created by the settlement of an action or special proceeding. Fischer-Hansen v. Brooklyn Heights R. R. Co., 173 N. Y. 493 , 66 N. E. 395 . The contract herein set forth is in legal effect the same as that involved in Matter of Bassford, 36 Misc. Rep. 733 ; 74 N. Y. Supp. 397 , and in that case there was no question of the attorney’s right to recover; the only question seriously urged being that he was not entitled to interest upon his share of the award. See Matter of Bassford v. Johnson, 172 N. Y. 488 , 65 N. E. 360 . In Harwood v. La-Grange, 137 N. Y. 538 , 32 N. E. 1000 , it was held that, when an attorney renders services in an action under an agreement that he shall receive his compensation out of the proceeds thereof, he has an equitable lien upon or ownership, as equitable assignee, in such proceeds, and that is the plaintiff’s theory in the present case. While it may be that he has not stated his case as clearly and concisely as might be desired, as against a demurrer, we are of the opinion that it is not open to the objections urged.

The plaintiff sets forth as a part of his complaint a copy of a notice served upon the board of estimate and apportionment, acknowledged by the defendant Lawrene, in which he says that he “has heretofore duly appéared in the above-entitled proceeding by Clarence C. Ferris, Esq., attorney and counselor at law, as his attorney therein,” and, with this in the record as a part of the complaint which is admitted for the purposes of the demurrer, we are at a loss to discover any reason for holding that the complaint does not state all of the facts necessary to a good equitable cause of action for the relief demanded in the complaint. See Fischer-Hansen v. Brooklyn Heights R. R. Co., supra, page 503 of 173 N. Y, page 395 of 66 N. E.

The interlocutory judgment appealed from should be affirmed, with costs. All concur.