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Bollar v. Schoenwirt

63 N.Y.S. 311 Court N.Y. App. Term English

Delivered by GILDERSLEEVE, J.

Contents

Majority

p. 311
(30 Misc. Rep. 224.)
BOLLAR v. SCHOENWIRT.
(Supreme Court, Special Term, New York County.
January, 1900.)

Headnote

Attorney and Client — Fees—Lien—Judgment—Satisfaction without Payment of Attorney — Vacation.
Under Code Civ. Proc. § 66, giving an attorney a lien upon his client’s cause of action which “cannot be affected by any settlement between the parties before or after judgment,” a satisfaction of a judgment, entered without the knowledge of plaintiff’s attorney, on a settlement between the parties, and without payment of the attorney fee agreed on, will be set aside where plaintiff is irresponsible, and the attorney will otherwise lose his claim.
Action by Emily Bollar against Max O. Schoenwirt. A judgment was recovered by plaintiff, and .was settled by defendant without the knowledge of plaintiff’s attorney, and without payment of his fees. Eugene I. Yuells, plaintiff’s attorney, moved to set aside the satisfaction of the judgment to enable him to enforce his attorney’s lien.
Motion granted in part.
E. I. Yuells, for the motion.
A. C. Palmer, opposed.

This is a motion to set aside the satisfaction of a judgment entered in favor of the plaintiff against the defendant, It appears that the plaintiff and her attorney, Mr. Eugene I. Yuells, entered into an agreement about the time the action was commenced to the effect that the attorney should have a lien on the cause of action for his compensation to the extent of $50 and his taxable costs. The case went to trial, and the plaintiff recovered a judgment against the defendant in said action. Execution was issued, and returned unsatisfied. Supplementary proceedings were instituted, and property of the defendant was discovered. Thereupon the defendant settled with the plaintiff without the knowledge of said attorney, and plaintiff executed a satisfaction piece of said judgment. The said attorney appears to have received no compensation,- and the plaintiff, according to the uncontradicted affidavit of the said attorney, is wholly irresponsible, and unable to pay said attorney. The attorney therefore makes this motion to set aside the satisfaction piece. It is well settled that under section 66 of the Code the lien attaching to the cause of action and to the judgment in the attorney’s favor cannot be impaired or destroyed by collusion or fraud; and in cases where this is made to appear the court has undoubted power, and will exercise it, to s<ff .aside a judgment, if such has been procured in the action, to the end that an attorney may proceed and enforce the lien or claim upon the cause of action. Hart v. Mayor, etc. (Sup.) 23 N. Y. Supp. 555 . A release of the judgment cannot affect the lien of the attorney, and, if a release has the effect to defraud the attorney, the court should set it aside, in order to protect the lien, where it is necessary to the protection of the attorney. Poole v. Belcha, 131 N. Y. 200 , 30 N.

p. 312
pendent upon his lien. I think the satisfaction piece should -be vacated to the extent of the attorney’s lien, so as to enable him to enforce the judgment against the defendant to the extent indicated. No costs of motion.

Orderéd accordingly.

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