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In re Fourteenth St.

143 N.Y.S. 943 Court N.Y. App. Div. Decision date 1913-10-24 English

Delivered by STAPLETON, J.

Contents

Majority

p. 943
(158 App. Div. 587.)
In re FOURTEENTH ST. IN CITY OF NEW YORK. Appeal of DICKERSON.
(Supreme Court, Appellate Division, Second Department.
October 24, 1913.)

Headnote

1. Attorney and Client (§ 182*)—Lien—Subject-Matter.
. An attorney, who was retained in proceedings to ascertain the damages to property caused by a change of grade in a street, which is heard before the board of assessors under Greater New York Charter, §§ 951-953 (Laws 1901, c. 466), is not entitled to a lien for his fee upon an award of damages to the same property caused by the opening of a new street which, under Greater New York Charter, §§ 979, 980, as amended by Laws 1906, c. 658, and Laws 1909, c. 394, §§ 2, 3, is heard before the commissioners of estimate and assessment.
[Ed. Note.—For other cases, see Attorney and Client, Cent. Dig. §§ 315, 399—406; Dec. Dig. § 182.[2] ]
p. 944
2. Attorney and Client (§ 182*)—Lien—Persons Entitled.
•An attorney, who is retained by a lot owner to appear in proceedings for the taking or damaging of his property, is not entitled to a lien upon the award, where the owner deeded the property back to his vendor in satisfaction of a purchase-money mortgage, prior to the award, and another attorney represented the new owner thereafter, since Judiciary Law (Laws 1909, c. 35; Consol. Laws 1909, c. 30) § 475, giving the attorney a lien upon his client’s claim, does not allow a lien against the claim of another.
[Ed. Note.—For other cases, see Attorney and Client, Cent. Dig. §§ 315, 399-406; Dec. Dig. § 182.[2] ]
Appeal from Special Term, Queens County.
In the matter of the application of the City of New York for the opening of Fourteenth Street in the Borough of Queens. Motion by Frank Dickerson for an order to compel payment of an award to which Joseph A. Flannery claimed an attorney’s lien'for services rendered. Motion denied, and Dickerson appeals. Reversed, „ and motion granted.
Argued before JENKS, P. J„ and CARR, RICH, STAPLETON, and PUTNAM, JJ.
Philip B. La Roche, Jr., of New York City, for appellant.
Benjamin Trapnell, of New York City, for respondent.

The appellant moved, under section 1001 of the Greater New York Charter, for an order directing the Comptroller of the City of New York to pay an award of $500 made to him in the above-entitled proceeding. The respondent intervened and claimed an attorney’s lien attaching to the award. The respondent obtained the order from which the appeal is taken, the effect of which order was to postpone the payment of the award, concededly the property of the appellant, until the reasonable value of the respondent’s services should be ascertained. The order determines that the respondent has a lien upon the award, for services as an attorney, in an amount to be thus ascertained.

The respondent procured from one Ellen Fenton the following written retainer:

The appellant in his brief gives the following chronological summary, which correctly shows the various facts established by the affidavits with relation to the time of their occurrence:

p. 946
[1] Analysis of the facts shows: (1) That the retainer was in a proceeding other than the one in which the award was made and the order granted, and cognizable in a different tribunal. Sections 951-953, 979, 980, c. 17, tit. 4, Greater New York Charter; chapter 658, Laws of 1906, as amended by Laws of 1909, c. 394, §§ 2, 3.

[2] (2) That the relation of attorney and client did not exist between appellant and respondent. None except an attorney can assert a lien. The statute so reads. The relationship is the foundation of the right. An attorney can assert a lien against his client’s claim but not against the claim of another. Section 475, Judiciary Law (chapter 35, Laws of 1909; Consol. Laws 1909, c. 30). See Matter of Niagara, L. & O. Power Co., 203 N. Y. 493 , 97 N. E. 33 , 38 L. R A. (N. S.) 207 , Ann. Cas. 1913B, 234.

As the order cannot survive these objections to its validity, we refrain from adverting to other fatal difficulties in the way of its affirmance which occur to us but which we do not deem it necessary to discuss.

The order should be reversed, with $10 costs and disbursements, and the motion granted, with $10 costs. All concur, except JENKS. P. J., not voting.

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