Majority
p. 775Ephraim C. Gates et al., App’lts, v. James C. De La Mare, Resp’t. (Supreme Court, General Term, First Department, Filed November 18, 1892.)
Headnote
Attorneys—Lien.An attorney who, by his services, has procured an increase in the amount of an award for land taken by eminent domain, thereby acquires alien upon the fund to the extent of the sum agreed upon between him and the owner, which lien is not affected by a subsequent foreclosure of a mortgage on the land.
Appeal from interlocutory judgment overruling a demurrer to the answer.
Action to recover the amount of an award made in condemnation proceedings to one Denninger, for land of his taken for a street. Defendant, who claimed a lien on the fund for services rendered to said Denninger by which the award was increased, was substituted in place of the city.
George W. Stephens, for app’lts ; James C. De la Mare, resp’t in person.
I am in favor of affirming the judgment in the court below, overruling the demurrer by the plaintiffs to the an
p. 776
swer of the defendant for insufficiency. The defendant, by his skill and labor, increased the amount of the award of the commissioners, and thereby acquired an equitable lien upon the fund to the extent of the sum agreed upon between him and Denninger, as his compensation for obtaining such increase. The rights ol the defendant having accrued prior to the foreclosure of the mortgage of the Harlem Savings Bank, Toch, the purchaser at the sale under that foreclosure, did not acquire any interest in the award which was superior to the lien of the defendant, and the plaintiffs, as the assignees of Toch’s grantee, of course only acquired Toch’s interest. The judgment below must, therefore, be affirmed, with costs and disbursements, with leave, on payment of costs, to withdraw demurrer.
Van Brunt, P. J., and O’Brien, J., concur.