Weinstein v. Seidmann

This is a suit in equity by an attorney to enforce an alleged lien upon a fund of $750, being the amount paid or agreed to be paid by the defendant Erdenbrecher in settlement of an action for personal injuries brought against*him by the defendant Lottie Seidmann on the 15th day of March, 1915. It is alleged that the appellants acted as her attorneys in that action and represented her in making the settlement, which is alleged to' have been effected on the 14th day of January, 1916, and, although it is not expressly alleged that they were the attorneys of record for her in the action which was settled, that may fairly be inferred. But, however that may be, it is quite clear from the allegations of the amended complaint that the plaintiff herein was not the attorney of record for the plaintiff therein originally, and it is not shown that he ever became tire attorney of record for her.

[1] The lien is asserted by virtue of sections 474 and 475 of the Judiciary Law. Plaintiff predicates his right thereto on a retainer in writing, signed by the defendant Lottie Seidmann under date of June 14, 1915, three months after the action is alleged to have been commenced against Erdenbrecher by which she agreed to pay the plaintiff 50 per cent, “of whatever money may be realized” by her “by judgment, settlement, or compromise” for services rendered and to be rendered by him “in regard to” her claim “against the proper defendant” for damages sustained by her “on or- about the 15th day of March, 1915.” The plaintiff alleges that, pursuant to the retainer, he performed work, labor, and services in preparing and investigating the claim, and in preparing a complaint, and in instituting “a certain motion,” and that he “attended court and rendered various legal services in connection with the aforesaid claim, and was ready and is willing to continue to perform any or all services required to be performed, and did duly perform all services required in said claim or action.”

The statutory lien conferred by section 475 of the Judiciary Law is given to the attorney of record only (Harding v. Conlon, 146 App. Div. 842 , 846, 131 N. Y. Supp. 903 ; Schiefer v. Freygang, 141 App. Div. 236 , 125 N. Y. Supp. 1037 ; Matter of Heinsheimer, 214 N. Y. 361 , 108 N.

“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 bo affected by any settlement between the parties before or after judgment or final order. The court upon the petition of the client or attorney may determine and enforce the lien.”

The lien claimed by the plaintiff is not a possessory or retaining lien, but a charging lien on the cause of action and the money paid or to be paid in settlement thereof. Such a lien was given at common law, and is now embodied in the statute, but it is given only to the attorney of record. Matter of Rieser, supra; Harding v. Conlon, supra; Matter of Heinsheimer, supra.

[2] The retainer does not purport to give a lien; nor does it constitute an assignment of part of the fund, for at most it is an agreement to pay the plaintiff out of the recovery. Bacon v. Schlesinger, 157 N. Y. Supp. 649 , and cases cited. No cause of action, therefore, is alleged against the appellants.

It follows that the order should be reversed, with $10 costs and disbursements, and motion granted and complaint dismissed as to appellants, with $10 costs. All concur.