Gallison & Hobron Co. v. Rawak — 24 N.Y. St. Rep. 318

Majority

p. 318

The Gallison & Hobron Company, Pl'ff, v. Henry Rawak et al., Def’ts.

(City Court, New York

Special Term,

Filed February 8, 1889.)

Headnote

Attorney’s lien—How protected in case oe settlement — Code Civ. Pro., § 66.

Where after suit was commenced and there was no appearance for the defendant, but the defendant paid the full amount claimed without the knowledge of the plaintiff's attorney; Ileld, 1. That- the plaintiff’s attorney could enter judgment by default for the full amount, with costs, and enforce it to the extent of the costs. 2. If the defendant had appeared and pleaded the payment, and plaintiff had proceeded to trial on the issue, the plea would have defeated the action. 3. But upon receiving such a plea the plaintiff’s attorneys could have obviated the defect and protected -¿heir lien for the costs under section 66 of the Code by obtaining an order permitting them to prosecute the action for the enforcement of their lien, which is in no way affected by the settlement made by the parties

Submission on statement of agreed facts.

The plaintiff, and defendant Rawak, hereby agree to the following state of facts: This action was commenced by the service of a summons and complaint on defendant Rawak on the 24th day of December, 1888, for the recovery of a claim of seventy-five dollars, which is conceded to have been due. Upon the 26th day of December, 1888, said Rawak paid twenty-five dollars of the said claim, and on the twenty-seventh following, fifty dollars more, both payments being made to the plaintiff and without the knowledge of plaintiff’s attorney. Defendant has never appeared, demurred or answered in the action. Plaintiff’s attorneys claim that costs and disbursements had accrued to the amount of sixteen dollars before said payments were made, which said defendant refuses to pay. The plaintiff is abundantly able to pay these

p. 319

costs. The plaintiff’s attorneys claim the right to enter judgment upon defendant’s failure to appear or answer, and have execution thereon for the collection of the said costs, which right the defendant Bawak denies, and agrees upon the statement of facts, for submission to the court for its direction in the premises. ISTo costs to either party on the submission.

Freeman & Green, for pl’ff; Arthur Murphy, for def’ts.

The defendants being in default for want o an answer, the plaintiff’s attorneys have the right to enter judgment for seventy-five dollars (the amount claimed), with costs Wood v. Trustees, etc., 7 Abb. Pr., 210 , note; Owen v. Mason, 18 How. Pr., 156 .) If the defendants had appeared and pleaded the payment, and the plaintiffs had proceeded to trial on the issue, the plea would have defeated the action. Rice v. Childs, 28 Hun, 303 ; Reimer v. Doerge, 61 How. Pr., 142 . Upon receiving such a plea, the plaintiff’s attorneys could have obviated its effect and protected their lien, by obtaining an order permitting them to prosecute the action for the enforcement of said lien ( 24 Hun, 182 ; 1 Bliss’s Code, 50, note c), which is in no way affected by the settlement made by the parties. Code, § 66.

All the plaintiff’s attorneys would have to prove would be a, cause of action in their client at the time the suit was commenced. Their lien attached to that, and was not impaired by what the parties themselves did afterward. The defendants being in default, it will not be opened except on payment of • all costs to date (Dietz v. McCallum, 44 How. Pr., 493 ), on payment of which the plaintiff .will be permitted to discontinue, without costs.

These various provisions of the practice work harmoniously together in aid of the general policy of the law to protect an attorney in his lawful costs whenever he invokes its protection against acts of his client operating or tending to operate to his prejudice. The plaintiff’s attorneys are, therefore, clearly entitled to their costs.