Loaners' Bank v. Nostrand

Headnote

Lien of attorney upon judgment in action in which he did not appear, but for the benefit of which judgment he successfully prosecutes creditors' bill under special agreement as to compensation—how protected by the court —Execution on such judgment, when not stayed in attorney's interest.

Appeal by Henry D. Betts, as attorney, from an order made at special term.

The order appealed from denied an application to set aside and vacate an execution issued upon the judgment

in the above-entitled action by Frederick P. Foster, as assignee of the right, title and interest of the plaintiff, the Loaners’ Bank, in said judgment.

The appellant claimed to have made an agreement with the receiver of the Loaners’ Bank, to prosecute the action of Wright, Receiver, v. Nostrand, et al. (47 Super. Ct. 441; 94 N. Y. 31 ), for the benefit, and to enforce the collection of his judgment, for one-half of the amount he might succeed in collecting thereon. Said action of Wright v. Nostrand was prosecuted by appellant to judgment, and a decree obtained setting aside certain conveyances of real estate from said Nostrand to his wife, as fraudulent against the owners of the judgment in this action, and declaring said judgment a lien upon said real estate, and authorizing its sale to pay the same under an execution to be issued thereon. Thereafter, on application made to the Supreme Court by the receiver of the Loaners’ Bank, plaintiff herein, for leave to sell said judgment, an order was made authorizing said receiver to sell the right, title and interest of said Loaners’ Bank, subject to all liens thereon, at public sale. Such sale was had, and said Foster purchased thereat said interest in said judgment, and thereupon issued an execution to the sheriff upon said judgment, and caused him to levy upon the real estate, upon which - the decree in the action of Wright v. Nostrand had declared said judgment a lien, and advertised the same for sale ; thereupon this motion was made.

The following opinion was delivered at Special Term : —“ Ingraham, J. :•—The decree in the equity suit (Wright v. Nostrand) provided that plaintiff, in the judgment in this action, or its successors, are at liberty to sell the said real and leasehold estates under execution to be issued to the sheriff, &c., upon the said judgment, which judgment is thereby declared to be a lien upon the said estate. The execution issued in this action appears to be as directed by the decree, and is issued by the assignee of the plaintiff in the action. I do not see how it can

be set aside. The attorney for the plaintiff in the equity suit would undoubtedly have a lien on the judgment for his compensation under section 66 of the Code, and such lien should be protected. The sale under the execution should not be stayed, but the sheriff should be stayed from paying the proceeds of the sale under the execution to the plaintiff, or its assignee, until the amount of the attorney’s compensation can be ascertained. If parties cannot agree upon the amount due the attorney, a referee will be appointed to ascertain such amount.

“ The motion will be granted to the extent indicated.”