Pitcher v. Hoople — 49 N.Y. St. Rep. 356

Majority

p. 356

Philira R. Pitcher, App’lt, v. William G. Hoople, Impl’d, Resp’t.

(Supreme Court, General Term, Second Department,

Filed December 12, 1892.)

Headnote

Attorneys—Lien—Settlement.

An attorney will not be permitted to continue an action to judgment for the purpose of securing his lien where it does not appear that the settlement was intended to be hostile to his claims or that his client is unable to respond thereto, and the apparent object of the motion is to require the payment of his fees by the other parties.

Appeal from order made on motion of defendant Hoople directing a discontinuance of the action.

Action to partition certain real estate bought with the partnership funds of a firm composed of respondent and one Robertson, of whom the other parties are the heirs at law.

Subsequent to the commencement of the action it was agreed by the parties that such real estate was partnership property and as such vested in respondent as surviving partner and should be sold in due process of liquidation, and it was also agreed that respondent was to take it at an agreed price as upon a liquidation, and be received quit claim deeds from all the other parties and paid the contract price to the administrators of Robertson.

Winsor B. French, for app’lt; John P. Hudson, for resp’t.

The parties to this action apparently became convinced that it could not be maintained and therefore settled their controversy without providing for the fees of the plaintiff’s- attorney. Thereafter an order was granted at special term discontinuing the cause.

The plaintiff’s attorney opposed the discontinuance and asks to be allowed to amend the summons and complaint in important respects and to continue the action with the purpose of establishing and perfecting his lien upon the cause of action and thereby enforcing the payment of his fees.

Where a collusive settlement of an action has been made for the purpose of defrauding an attorney of his fees, the court will sedulously seek means to prevent the fraud and protect the attorney’s rights. And it may well be that in such a case the court would grant needed amendments and allow-the action to be prosecuted to judgment.

In the present case we find no evidence that the settlement was intended to be hostile to the claims of the plaintiff’s attorney or that his rights are in fact imperilled. There is no suggestion that the plaintiff disputes or is unable to respond to the claims of her attorney.

The plaintiff makes an affidavit in support of her attorney and the apparent object of the opposition now made to the discontinuance is to require the payment by other parties to the action of the fees of plaintiff’s attorney. We do not think a case is made justifying the continuance of the action for that purpose.

Order affirmed, with costs.

Barnard, P. J., and Dykman, J., concur.