Bailey v. Murphy — 49 N.Y. St. Rep. 82

Majority

p. 82

William F. Bailey, Resp’t, v. Nicholas Murphy, App’lt.^[1]

(Court of Appeals,

Filed November 29, 1892.)

Headnote

Attorneys—Settlement ín fraud op attorney’s lien—Counsel pees.

On a motion to set aside a satisfaction given by a client in fraud of his attorney’s lien, the special term has no right to determine the amount of compensation due the attorney, as the costs are presumptively the measure of the attorney’s right, and if he is entitled to more on some express or-implied agreement, that amount must he first liquidated in some proper action between the attorney and his client.

p. 83

Appeal from order of the supreme court, general term, second department, affirming order vacating satisfaction of a judgment and permitting plaintiff's attorney to enforce his lien for costs and counsel fee.

Irving Brown, for app’lt; Alonzo W heeler, for resp’t.

The affidavits read on this motion sufficiently show that the settlement made by the plaintiff in the judgment was in fraud of his attorney and injuriously affected his rights. The settlement was made for an amount much smaller than the recovery accepted by the plaintiff without the knowledge of his attorney and with no provision for his payment, and the former immediately absconded and left the state, and is alleged to be wholly irresponsible. Under such circumstances the order of the special term vacating and setting aside the satisfaction entered of record as against the claim of the attorney for his compensation was proper, and should be affirmed without modification so far as it awards that relief. But it went further. It assumed to fix a counsel fee of $100 as due from the plaintiff to his attorney beyond the taxed costs to be protected by the lien. On this motion the court was not at liberty to determine the amount of compensation due to the attorney, if any, over and above the amount of the taxed costs. The latter were presumptively the measure of the attorney’s right, and if he was entitled to more, by virtue of some express or implied agreement, that amount must be first liquidated in some proper action between the attorney and his client, and cannot be arbitrarily determined upon a motion to vacate the satisfaction entered. The client has the same right to defend against such an asserted liability as belongs to him when any other claim is alleged, the existence or amount of which he disputes.

The order should be modified by striking out so much of it as awards a counsel fee, and as, modified affirmed, without costs to either party on this appeal.

All concur.