Drago v. Smith — 72 N.Y. St. Rep. 418

Majority

p. 418

Philip Drago, Resp’t, v. James H. Smith, App’lt.

(Supreme Court, General Term, Fifth Department,

Filed December 28, 1895.)

Headnote

1. Costs—Action fob wages.

Chapter 805 of 1895 does not apply to an action settled by the parties out of court before the statute took effect, and such action cannot be continued to judgment for the benefit of the plaintiff’s attorney.

2. Attoeney and client—Lien—Municipal coubt of buffalo.

Section 66 of the Code does not apply to actions in the municipal count of Buffalo instituted prior to the amendment of the statute of 1895.

Appeal from a judgment in favor of plaintiff.

' Frank Harding, for app’lt; Clinton A. Webster; for resp’t

—This action was brought in the municipal court of Buffalo by plaintiff against the defendant on the 11th day of May, 1895, to recover $7.87 for work performed as a common laborer, under section'458 of the charter of the city of Buffalo, which gives a common laborer who has á family dependent upon him for support, and recovers a judgment for less than $25 for his labor, in addition, $8, as statutory costs, and the costs and disbursements of the action, and the remedy of the body execution against his debtor upon the return of a property execution unsatisfied. Issue was joined May 21, 1895, by an answer denying the allegations of the complaint. The case was adjourned from time to time, until June 4th, when it was tried upon a stipulation of the parties’ attorneys. The stipulation embraced a receipt as follows':

“ Buffalo, N. Y., May 25, 1895,

“Received of James H. Smith full amount of all claims or demands against him for work and services done for him previous to this date, and for which suit is now pending in the municipal court, entitled ‘ Philip Drago vs. James H. Smith,’ and I agree to discontinue suit without costs to said James H. Smith.

PHILIP DRAGO."

At one of the adjournment after the settlement, the defendant set up the receipt, by supplemental answer. Notwithstanding the settlement, the plaintiff’s attorney insisted upon proceeding with the action, for the purpose of protecting the lien which he claims he bad for the $8 costs given by statute, and that he was entitled to enforce such lien under section 66 of the Code of Civil Procedure, which gives an attorney a lien upon his client’s cause of action, or upon any judgment, verdict,- report, or decision that may be obtained upon such cause of action, for the attorney’s services. The municipal court rendered a judgment in favor of the plaintiff and -against the defendant for damages, $7.87.court costs, $2.85; statute costs, $8,—and directed that the sum of $7.87 paid to the plaintiff should be credited upon the execution, and that the defendant was liable to execution against the person.

The plaintiff’s attorney and the municipal court seem to have assumed that the statute which the plaintiff’s attorney invoked, and which gives the laborer the protection claimed, was in force at the time of the settlement, and therefore the settlement could be disregarded, and the attorney’s lien enforced by a proceeding in that action, notwithstanding the settlement. Section 458 of the Buffalo charter, being chapter 105 of the Laws of 1891, provided that, in an action brought in a municipal court by a domestic servant to recover for services performed by her, if the plaintiff recovers a judgment for a sum not exceeding $25, exclusive of costs, no property of the debtor should be exempt from execution, and, if an execution against the property was returned unsatisfied in whole oi^in part, plaintiff was entitled to an execution against the person, to collect the same. This section was amended in 1895 (chapter 805), and took effect May 27, 1895

p. 420

That amendment gave to a laborer having a "family dependent upon him for support, for wages due him, the same right as a domestic servant under the act of 1891, supra,—if he recovered a judgment for a sum not exceeding $25, exclusive of costs, no property of the defendant should be exempt from execution, and authorizing a body execution in case an execution against the property was returned unsatisfied in whole or in part,—and provided that he should be entitled to recover the sum of $5 as costs, in addition to the costs allowed by section 462 of chapter 105 of the Laws of 1891, which provided that in an action for wages, if the recovery did not exceed $25, the plaintiff was entitled to recover $3 as costs. It will be seen from the above statement that the statute which gave the unskilled laborer the rights upon which this judgment was predicated and the right to an execution against the person of his debtor, was not in existence at the time of the commencement of tile action in the municipal court, or at the time of the settlement. At the time of such settlement, the plaintiff had the right of any other plaintiff in a justice’s court, or in a court that takes its place, like the municipal court of the city of Buffalo, to obtain his judgment, and collect it, if he could, out of the property of his, debtor. He was not entitled to the special costs of five and three dollars; only the ordinary costs of the action, if h,e recovered. There was nothing, therefore, in the way of his settling the action with the defendant upon any terms he chose. If he had an attorney in the proceedings, that attorney must look to his client for his compensation. Section 66 of the Code of Civil Procedure certainly had no application to the case as it existed when the settlement was made, and prior to the amendment of the statute in 1895. Indeed, it has been held by the court of appeals, in cases where section 66 applies, that the client still remains the owner of the cause of action, and is not bound to continue, or permit the continuance of, the litigation, for the benefit of the attorney, when he deems it prudent to stop, provided he is willing and able to satisfy the just claims of the attorney, and the settlement is not made in fraud of tire rights of the attorney, and it does not appear that the client is irresponsible. Lee v. Vacuum Oil Co., 126 N. Y. 579 ; 38 St. Rep. 662 ; Poole v. Belcha, 131 N. Y. 200 ; 42 St. Rep. 856 . It cannot be claimed that this settlement was in fraud of plaintiff’s attorney, in order to deprive him of his costs, because no authority existed for the imposition of such costs at the time of the settlement, nor does it appear that the client is irresponsible. We are also of opinion that section 66 of the Code has no application to the municipal court of Buffalo.

The judgment should be reversed.

All concur.

Cases cited

Lee v. Vacuum Oil Co. 126 N. Y. 579 N.Y. 1891-06-02 p. 420
Poole v. Belcha 131 N. Y. 200 N.Y. 1892-02-12 p. 420