Holmes v. Bell

Appeal by the defendants Helen Villard Bell and James W. Bell, appearing specially for the purpose, from an order denying a motion to vacate an order directing that the service of the-summons herein be made upon said defendants Bell by publication, or by personal service without the state. The motion to vacate was based upon two grounds: First, that the complaint herein does not establish a sufficient cause' of action against the defendants to be served; and, second, that the papers upon which the order was made were insufficient.

The complaint alleges that plaintiff is an attorney at law; that the defendant Helen is the only daughter of the late Henry Villard, and the defendant James W. Bell is her husband; that Henry Villard and his wife, Fanny Garrison Villard, on- or about October 19, 1884, jointly executed a certain irrevocable trust to William Lloyd Garrison, as trustee, whereby they transferred to said Garrison as trustee all their right, title, and interest to 156 shares of the Evening Post Publishing Company, of the par value of $500 each, to pay the income of 76 shares to the defendant Fanny Garrison Villard during the term of her natural life, and upon her death to divide said 76 shares into as many parts as there were children of her and Henry Villard, then surviving, or the issue of such deceased children, and to pay over the same absolutely to the said surviving children; to divide the remaining 80 shares of stock into four equal parts of 20 shares each, and to hold each of said blocks in trust for the following uses and purposes: To pay the income and dividends from one of the said blocks of shares to the defendant Helen Villard Bell until she should arrive at the age of 21 years, and upon her arriving at the age of 24 years to pay over one of said blocks of 20 shares to her, and upon the death of said Helen Bell before attaining the age of 24 years, without leaving issue, her share to be divided into equal parts among the survivors, the other trust beneficiaries named in such deed, or the issue of such deceased children. There are certain other provisions not material. That the said deed of trust was executed in triplicate, and was signed by said Henry and Fanny Villard and said Garrison, and duly acknowledged on October 19,' 1884, before this' plaintiff, who was then and there duly authorized as a notary public to take said acknowledgments; that said deed of trust was in all

That after the consummation of said agreement for services to be rendered by him as such counsel as aforesaid, and appropriating and using the information given to her by the plaintiff as to the existence of said deed of trust, the said Helen Villard Bell, on or about May 15, 1905, commenced an action by the said Mumford as her attorney in said action in equity, demanding that said deed of trust be declared a valid and existing trust, and that the said Helen be declared to be entitled to her beneficial interest as set forth in said deed of trust, and to the actual ownership of 26% shares of said stock from the date on which she attained the age of 24 years and all the income and profits accruing on said stock from October 19, 1884; that Garrison, the trustee, account to her, and that he be declared to have been recreant in the trust confided to him and be removed as such trustee, and that the defendants Villard be directed to account to her, etc. That the defendant in said action served an amended answer putting in issue all the material averments of the plaintiff in that action; that said action was never brought to trial, but on or about the 28th of June, 1906, the said action was compromised and settled by the parties thereto without the knowledge or consent of the plaintiff; that it was provided by the terms and provisions of said compromise and settlement, reduced to writing and duly executed, that the sum of $5,000 cash should be paid to the said Helen, and the said Fanny, Oswald, and Harold Villard, defendants in said action, conveyed and delivered to Harold Garrison Villard, to and for the use of said Helen, the following securities (enumerating them), mak

The complaint sets up a supplemental agreement as a part of said compromise, with reference to further shares of stock subject to the claim of the plaintiff for his services, 20 per cent, of the income, and that such stocks are of the value of $43,650. On information and belief the plaintiff -further shows that the defendant Helen and her husband are not residents of the United States, and have not been for many years last past, but are aliens, residents of and domiciled in Dresden, Saxony, Germany; that they are pecuniarily irresponsible, except for such interests as they may have under the said agreement of settlement and compromise and under said agreement between Harold Garrison Villard and the defendant Knickerbocker Trust Company of June 22, 1906, and said agreement between said defendant Helen and her husband and Danny, Oswald, and Harold Villard, of May 27, 1907; that the said defendants Helen and James Bell have little or no property which could be reached by execution or otherwise to satisfy a money judgment of the plaintiff against them, and that they are in receipt of substantially no income except such income as is secured to them from the said stocks as the result of said services of the plaintiff, and that unless the plaintiff can enforce his claim in this court of equity, and have the same charged as a lien upon the said securities and the income or installments therefrom, payable by said defendant Knickerbocker Trust Company, he will be remediless, and that the plaintiff has no adequate remedy at law, and that resort to this court

In Grant v. Cobre Grande Copper Co., 193 N. Y. 307 , 86 N. E. 35 , the court said:

“Section 439 provides that the order must be founded upon a verified complaint, showing a sufficient cause of action against the defendant to be served, and proof by affidavit of the additional facts required by the last section. The reversal of the Appellate Division appears to have been based upon the latter provision of the Code and upon the ground that the complaint filed in this action does not state a sufficient cause of action against the Cobre Grande Copper Company. It is not our practice, upon this kind of an order, to search the complaint with the care we would upon a demurrer.”

But the court did go on and examine the complaint, because this court had, and came to the conclusion that it stated a cause of action, and therefore reversed the order setting aside the service by publication.

In Paget v. Stevens, 143 N. Y. 172 , 38 N. E. 273 , the court said:

“This language [referring to section 439, Code Civ. Proc.] does not mean simply a complaint which would withstand a demurrer based upon the ground that it did not state facts sufficient to constitute a cause of action. The cause of action which is sufficient is one against the defendant of which the court can take cognizance. In this case it must be one of which the court has jurisdiction as to defendant Charles G. Stevens, upon the assumption tliat he is a nonresident. This meaning has been adjudged to be the correct one in Bryan v. University Co., 112 N. Y. 382 [ 19 N. E. 825 , 2 L. R A. 638 ].”

Certain other cases were collected in the opinion of this court in Grant v. Cobre Grande Copper Co., 126 App. Div. 750 , 111 N. Y. Supp. 386 . Justice McLaughlin’s language in Montgomery v. Boyd, 60 App. Div. 133 , 70 N. Y. Supp. 139 , was quoted:

“So far as we have been able to discover, it has been uniformly held that in order to justify an order directing service by publication, or personally without the state, the complaint upon which the order is based must show that the plaintiff has a cause of action.”

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

Plaintiff never was Mrs. Bell’s attorney. The complaint alleges that George D. Mumford was her attorney, and that by said Mumford as her attorney Mrs. Belf began a suit based on the information given, which suit was compromised and settled with certain results. The claim is upon a promise to give information. What is alleged is a sale of information obtained by Holmes through his relation to Mrs. Bell’s father. It is a contract for payment for that information which is set up as the basis of this suit.

No lien is given to counsel. It is confined to attorneys who have appeared. Brown v. Mayor, 9 Hun, 587 . If no attorney’s lien is stated, there is no other kind of a lien set up by the allegations of the complaint. There was no equitable assignment. In Donovan v. Middlebrook, 95 App. Div. 365 , 88 N. Y. Supp. 607 , Mr. Justice McLaughlin said:

“To constitute a valid assignment there must be a perfected transaction between the parties intended to vest in the assignee a present right in the thing assigned. An agreement to pay a certain sum out of, or that one is entitled to receive from, a designated fund, when received, does not operate as a legal or equitable assignment, since the assignor in either case retains control over the subject-matter. ‘The test is’ even of an equitable assignment ‘whether the debtor would be justified in paying the debt or the portion contracted about to the person claiming to be assignee.’ Fairbanks v. Sargent, 117 N. Y. 320 , 22 N. E. 1039 , 6 L. R. A. 475 . ‘It is the settled doctrine in this state,’ says the court in Thomas v. N. Y. & G. L. R. Co., 139 N. Y. 163 , 34 N. E. 877 , ‘that an agreement, either by parol or in writing, to pay a debt out of a designated fund does not give an equitable lien upon the fund or operate as an equitable assignment thereof.’ ”

The court cited, also, Williams v. Ingersoll, 89 N. Y. 508 . No portion of the claim was transferred by the contract counted upon, nor was there any provision that plaintiff should first satisfy himself out of the proceeds and then pay over the balance. Nor could there have been, for he is not alleged to have been her attorney or that she contemplated that he should be. He alleges distinctly that she promised “that she would pay him for such services 20 per cent, of the results obtained by her under the provisions in her behalf of said deed of trust” I think at best there was a common-law contract "as to the validity of which, in the eye of the law, there may be doubt. I am of the opinion that the action in equity here set up will not lie; that plain

It follows, therefore, as the order appealed from was not founded upon a verified complaint showing a sufficient cause of action against the defendants to be served, it must he reversed, with $10 costs and disbursements, and the motion to vacate granted with $10 costs. All concur.