Majority
p. 126Leslie H. Crouch, Pl’ff, v. Addison H. Hoyt, Def’t. (New York Superior Court, Special Term, Filed September 15, 1894.)
Headnote
Attorney and client—Lien.Under § 66 of Code, an imprisoned defendant is not entitled to a discharge until the fees of plaintiff’s attorney have been paid, though plaintiff has consented to such discharge.
'Motion to discharge defendant from imprisonment.
Josiah T. Lovejoy, for pl’ff; R. J. Haile, for def’t.
The defendant was incarcerated" August 23, 1894, under an order of arrest granted by Judge Freedman. Since then the plaintiff has relented, executed a general release to the defendant, and Consented to his discharge from imprisonment. Josiah T. Lovejoy, the attorney for the plaintiff, objects to the defendant’s discharge on' the ground that his fees in the action,
p. 127
amounting to $250, have not been paid. Section 66 of the Code gives the attorney who appears for a party a lien upon his clients cause of action, which cannot be affected by any settlement between the litigants. This lien extends to all provisional remedies or securities given in the action after its commencement. Therefore, there can be no valid discharge of the defendant, who is totally impecunious, until the attorney who incarcerated him sees fit to consent, and this counsel absolutely refuses to do. This is- a sad casé, but the court can extend no aid.
Motion to discharge denied.