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In re Ely

139 N.Y.S. 729 Court N.Y. Sup. Ct. Decision date 1913-01-25 English

Delivered by TOMPKINS, J.

Contents

Majority

p. 729
(79 Misc. Rep. 118.)
In re ELY.
(Supreme Court, Special Term, Westchester County.
January 25, 1913.)

Headnote

Attorney and Client (§ 182[2] )—Compensation op Attorney—Enforcement op Lien.
Under Judiciary Law (Consol. Laws 1909, c. 30) § 475, providing that from the commencement of an action or special proceeding, and the service of an answer containing a counterclaim, the attorney who appears for
p. 730
a party has a lien on his client’s cause o£ action, claim, or counterclaim, which attaches to a verdict, report, decision, judgment, or final order in his client’s favor, and the proceeds thereof, an attorney cannot enforce a lien for services and disbursements against real estate which has been the subject-matter in a certiorari proceeding to review the assessment of the real estate for taxation.
[Ed. Note.—For other cases, see Attorney and Client, Cent. Dig. §§ 315, 399-406; Dee. Dig. § 182.[2] ]
Application by William A. H. Ely, an attorney, to determine and ■enforce an attorney’s lien.
Denied.
H. H. & W. L. Morse, both of Tarrytown, for petitioner.
Duer, Strong & Whitehead, of New York City, for respondents.

The question in this proceeding is whether an .•attorney can assert and enforce a lien for his services and disbursements against real estate which has been the subject-matter in a certiorari proceeding to review the assessment of such real estate for the purpose of taxation, where the petitioner was the attorney for the owners of the property. The claim by the attorney is made under .sections 474 and 475 of the Judiciary Daw (Consol. Laws 1909, c. 30). ■Section 475 provides as follows:

“From the commencement of an action or special proceeding, and of 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 whosoever hands they may ■come.”

I think the petitioner cannot maintain this proceeding, and that his remedy is by an action at law. It does not appear that there has been a “verdict, report, decision, judgment or final order in his client’s favor,” or that his clients have the “proceeds” of any “cause of action, claim or counterclaim.”

The certiorari proceeding appears to have been settled before reaching a final order or judgment, and. it does not appear that the owners reaped any direct benefit from that proceeding. Eor a subsequent' year, it is alleged in the petition the assessment upon the property upon the client’s real estate was.materially reduced, and the petitioner claims that he accomplished that reduction. This is denied, however, by the respondents. Conceding that the petitioner’s claim in this respect is true, I cannot see how a lien can be asserted against the real ■estate for the attorney’s services before the town assessors in securing a reduction of the assessment. The provisions of section 475 of the Judiciary Law were not, in my opinion, intended to cover such a proceeding, nor do I think that an attorney’s lien can be enforced against real estate which is the subject of a certiorari proceeding, upon the theory that such real estate is the “proceeds thereof,” within the meaning of section 475.

Motion denied.

Statutes and regulations cited