In re King

On the 1st of December, 1892, Benjamin Williamson, a resident of the state of New Jersey, died, leaving a will, in which his son Isaac H. Williamson was named as trustee of a trust estate therein created. The will was admitted to probate .in the state of New Jersey. The trustee qualified, and acted until the 11th of March, 1896, when, by an order of the orphans’ court of Union county, in that state, he was removed, and Theodore C. English, the appellant herein, appointed in his place. English qualh fied, and since has been, and now is, acting as such trustee. The trust estate consisted of certain stocks and bonds, which Isaac H. Williamson, very soon after he qualified as trustee, lost in speculation, having put them up as margins with certain brokers in the city of New York. This fact having come to the knowledge of English, he, through his attorneys, King and Jessup, the respondents herein, brought an action against the brokers to recover such securities, upon the ground that when they dealt with Williamson they knew, or had reason to believe, that such securities did not belong to him, but were only held by him as' trustee. English had a judgment, which on appeal was affirmed by this court ( 29 App. Div. 439 , 51 N. Y. Supp. 697 ), and pending an appeal to the court of appeals a settlement was made, the brokers consenting that the securities, which had been deposited with the Central Trust Company pending the determination of the action, might be delivered to English,

For the purpose of the question now presented, it may be conceded that King and Jessup, as attorneys, originally had a lien on the securities recovered for the services rendered by them, which could have been, under section 66 of the Code of Civil Procedure, enforced in a proceeding instituted as this one was. We are, nevertheless, of the opinion that the application of the petitioners should have been denied, and for the reason that prior to the institution of it they had expressly waived whatever lien they had. There can be no doubt that a person who has a valid lien may waive it; and this, as it seems to us, is just what the attorneys did. At the conelusion of the litigation, when they, acting as attorneys for the trustee, procured an order of the supreme court directing the trust company to deliver these securities to the trustee, that act in and of itself wTas a distinct waiver of any right, claim in, or interest to the securities on their part for services rendered (Goodrich v. McDonald, 112 N. Y. 157 , 19 N. E. 649 ); and this seems to have been the view entertained by the petitioners themselves when they wrote to the trustee under date of November 16, 1900, in which letter they said: “We have no desire to impress any such lien on the funds, and have assented to your taking the securities, and sending us a check for the balance at your convenience.” After the order had been made, it was the duty of the trust company to comply with it, .and for its refusal it could have been punished for a contempt of court; and it was equally a contempt of court on the part of others to prevent its complying, except in a proceeding instituted in court, ¡looking to a modification or a reversal of the order. On all of the facts, therefore, we are of the opinion that the respondents waived their lien, and are not now in a position to enforce it.

It follows that the order appealed from must be reversed, with $10 costs and disbursements, and the motion denied, with $10 costs. All concur, except PATTERSON, J., who dissents.

I concur with Mr. Justice McLAUGHLIN, but T do not think that section 66 of the Code gives the court jurisdiction to determine the amount of the indebtedness of a client to his .attorney in this summary way. That section gives to an attorney