Keeler v. Keeler — 21 N.Y. St. Rep. 666

Majority

p. 666

Daniel Keeler, Resp’t, v. Mary Keeler, App’lt.

(Supreme Court, General Term, Third Department,

Filed February 7, 1889.)

Headnote

Attorney and client—Lien of attorney not affected by client’s, settlement—Code Civ, Pro., § 66.

The lien of an attorney upon his client’s cause of action is not affected by an agreement between the parties, and a settlement made without notice to him cannot prejudice him; he can continue the action and recover as much upon his client’s cause of action, as it existed before the-settlement, as equals the amount of his lien.

Appeal from a judgment of the Albany county court, entered upon a verdict directed by the court. -

The plaintiff, by Doyle & Fitts, his attorneys, commenced this action in favor of the plaintiff, to recover for services rendered the defendant. The attorneys made an agreement with the plaintiff, that for their services they should have one-half of the recovery and all the taxable-costs. After they served the complaint, and before answer, the parties, without notice to plaintiff’s attorneys, settled the cause of action for $300, which sum the defendant paid.

p. 667

the plaintiff. The defendant had no notice of the agreement between the plaintiff and his attorneys. The defendant afterwards answered and alleged the settlement and payment in defense. The plaintiff did not pay his-attorneys. The case came on for trial and on proof oí the above facts the defendant asked the court to rule that the recovery be limited to the taxable costs; that the lien of the attorneys could not be enforced without first obtaining leave of the court; that the defendant be permitted to go to the jury upon the question whether the settlement was made in good faith.

These several requests were refused and the court directed a verdict in favor of the plaintiff for $150.

J. F. Crawford, for app’lt; Doyle & Fitts, for resp’t.

Section 66 of the Code Civil Procedure, is explicit in regard to the lien of an attorney upon his client’s cause of action for his services. The amount of it “ is governed by agreement, express or implied, which is not restrained by law.” It attaches upon the service of the first pleadings “ and cannot be affected by any settlement between the parties before or after judgment.” No notice of the lien need be given to the adverse party. The statute makes the hen complete. Payment in settlement of the cause of action to the party himself, without notice to the lienor, and without affording him an opportunity of protection, unless he has waived his rights, cannot prejudice him. A right so fully and completely vested, must necessarily draw to itself a remedy adequate to its enforcement.

■ The simplest remedy, in the case of the attorney for the plaintiff, where the parties settle before trial, is to permit him to continue the action and recover as much upon his client’s cause of action as it existed- before settlement, as equals the amount of the lien. Such was the course here pursued, and is sanctioned by authority. Coster v. Greenpoint Ferry Co., 5 Civ. Pro. Rep., 146; S. C., 98 N. Y., 660 ; Wilber v. Baker, 24 Hun, 24 ; Forstman v. Schulting, 35 id., 504; Pickard v. Vencer, 10 W.Dig., 271; Albert Palmer Co. v. Van Orden, 64 How., 79 .

There are cases the other way, but if we are right in supposing that' the case first cited, has been affirmed by the court of appeals, they cannot control the question here presented.

Judgment affirmed, with costs.

Learned, P. J., and Ingalls, J., concur,,