Branth v. Branth — 32 N.Y. St. Rep. 979

Majority

p. 979

Theresa Branth, Pl’ff, v. John H. Branth, App’lt.

(Supreme Court, General Term, First Department

Filed July 18, 1890.)

Headnote

1. Attorneys — Lien—Alimony and counsel fees.

A satisfaction of a decree for alimony, costs and counsel fee in fraud of the lien of the attorney for the plaintiff will he set aside for the purpose of protecting and enforcing such lien, even though the plaintiff he dead.

p. 980

2. Same.

The attorney, however, must rely on the costs and counsel fee awarded for his compensation, and no claim to the alimony or any part of it or to the enforcement of it can enure to his benefit.

8. Same — May be enfobced by fine.

In such case the payment of the costs and counsel fee may he enforced by fine for contempt under § 779 of the Code. (Daniels, J., dissents.)

4. Same — Commitment.

A commitment in such case which does not show that it relates exclusively to costs and counsel fee cannot be sustained.

Appeal from order of special term vacating and annulling a satisfaction piece of a judgment for costs, etc.

Wilder, Wilder & Lynch, for app’lt; Langhein Bros. & Langhein, resp’ts in person.

A detailed statement of the facts and incidents of this action, if necessary, would show efforts on the part of the defendant to escape the consequences of his failures to do what he was required to do, and among others a flight to avoid the service of process, by which he was prevented from bringing ■on an appeal prosecuted by him. The serious charge against him now is, however, the settlement made with the plaintiff, and by which her attorneys were to be deprived of their rights secured by the orders of this court and its decree. The defendant was advised of the attorneys’ lien by verbal notice and cannot escape the evil results to him of the settlement, if the judgment or decree be maintained as to it, as it will be if the order appealed from be in that respect sustained. The discovery of the settlement accomplished secretly by the defendant, and secured by the plaintiff’s execution of a satisfaction piece, induced a motion by the attorneys to set it aside, which motion was granted, and hence this appeal. It is not necessary to cite authorities to sustain the proposition that an attorney’s lien will be protected against any kindred attempt to the one made herein to destroy it, and ail ingenious devices by act or thought when discovered which have such a tendency.

On the facts disclosed, it is sufficient to say, that the exercise herein of this power was abundantly authorized and must be maintained. The death of the plaintiff, therefore, prior to the motion to set aside the satisfaction piece, the effort on the part of the plaintiff’s attorneys to secure to them the payment of any alimony, and the power to enforce payment of their costs by commitment present the only questions which are to be regarded worthy of consideration herein. The conduct of the defendant in obtaining the satisfaction piece had the effect of substituting the attorneys of the plaintiff the plaintiffs herein, thus to enable them to carry out the case by the appropriate remedies until their lien is paid or the modes of procedure for collection exhausted. The case of Lachenmeyer v Lachenmeyer, 65 How. Pr., 422 , determines this right even after the death of the plaintiff, and is a kindred casa The alimony, however, although it be obtained by assignment, cannot be secured by the plaintiff’s attorneys.

p. 981

It is intended for the support of the party to whom it is given, and the greater the necessity for such an allowance, the greater the reason why the courts should discountenance its appropriation for any other purpose. The counsel must rely upon the costs and counsel fee awarded for his compensation and therefore no claim to the alimony, or any part of it, or to the enforcement of it by ■any process issued or otherwise, can enure to the benefit of her attorneys. We do not doubt that the amount of costs and counsel fee may be collected in the same manner under § 779 of the Code as if the plaintiff were alive. The punishment as for contempt of court is prescribed by that section, and the payment of ■costs and counsel fee might doubtless be enforced in a proper case by a fine imposed which would cover them. The respondents do not appear on the record to have secured any such remedy as to their costs and counsel fee by an independent proceeding, and there is nothing therefore on that subject to be considered. The a-esult of this appeal is, consequently, that so far as the order appealed from vacates the order vacating the order of commitment, dated July 15, 1887, it is reversed, but affirmed in all other respects. The respondents have not shown that the commitment related exclusively to costs and counsel fee, as already suggested, and not to alimony, which was incumbent upon them if they desired to retain the power to enforce it. The alimony by the settlement and death of the plaintiff is expunged from the record and ceases to have the least vitality.

For these reasons the order appealed from must be reversed as to the order in l’elation to the commitment and affirmed in all other respects, without costs to either party.

Van Brunt, P. J., concurs.

I agree to the result, but not in what has been •said in support of the right to collect the costs by a fine for contempt. The remedy for the collection of the costs being confined to an execution.