Mellis v. Pentelow — 36 N.Y.S. 906

Majority

p. 906

MELLIS v. PENTELOW.

(Supreme Court, General Term, Fourth Department.

December 26, 1895.)

Headnote

Attobney and Client—Lien—Cause of Action not in Suit.

Code Civ. Proc. § 66, gives an attorney a lien on the cause of action or counterclaim of his client “from the commencement of an action or the service of an answer containing a counterclaim.” Held, that an attorney who had performed some service in attempting to obtain some papers from a county clerk for a receiver had no such interest in a cause of action in favor of the receiver, and against the clerk, for damages for withholding the papers, as would give him standing to ask a court to order the receiver to sue thereon.

Appeal from special term, Onondaga county.

Motion by W. H. Gardenier, as attorney for Lysander T. Millis, receiver, for an order directing said receiver to bring action against

p. 907

William J. Pentelow, or to permit Gardenier, as attorney, to bring such action tor his own benefit, in the name of the receiver. The receiver opposed the motion. From an order of the special term denying the motion, Gardenier appeals.

Affirmed.

Argued before HAEDIN, P. J., and MAETIN and MEEWIN, JJ.

W. H. Gardenier, in pro. per.

Merrick Stowell, for respondent.

Mr. Millis was receiver in proceedings supplementary to execution. Mr. Gardenier acted as his attorney in some litigation over property that he claimed as receiver; and in the course of that litigation the county clerk, as Mr. Gardenier claims, was guilty of official misconduct, in failing to furnish copies of papers which were or had been on file in his office, by reason of which Millis, in his official capacity, as Mr. Gardenier alleges, was greatly damaged. On the motion upon which the order appealed from was made, Mr. Gardenier sought to have the court order the receiver to bring suit for this damage, or allow Mr. Gardenier to bring it in the name of the receiver, to the extent of permitting him (Gardenier) to recover, if he could, sufficient to pay him the amount of his charges in his unsuccessful efforts to compel the county clerk to furnish the required papers. The receiver was not willing that the suit should be brought, and any steps towards bringing it were not authorized by him. He opposed the motion made by the attorney, and insisted that there was no cause of action against the county clerk. The judgment creditor in the supplementary proceedings was also unwilling that the suit be brought. If the application of the attorney be deemed a motion for leave to bring the action, it would be a fatal objection to the application that rule 79 of the stipreme court was not complied with. The cause of action is alleged to be due to Millis as receiver. The appellant claims he should have the right to enforce the claim- against the county clerk, in order to enable him to get pay for his services. Still, there is evidence in the papers before the special term from which that court had a right to. say that the attorney had no just claim against the receiver for services. The attorney had no lien under section 66, Code Civ. Proc., as no action had been commenced. We are referred to no authority which, under the circumstances here presented, would justify the court in directing the receiver to bring suit, and we fail to find any good reason for disturbing the order.

Order affirmed, with $10 costs and disbursements. All concur.