Sweet v. Bartlett — 6 N.Y. Super. Ct. 661

Majority

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Joseph T. Sweet v. Bartlett.

Headnote

This court sustains the attorney’s lien for costs on principles of justice and equity, where it can be done without infringing upon the statute of set off.

Accordingly, where a plaintiff recovered a verdict and judgment in tort, from which the defendant appealed, and plaintiff then assigned the judgment to his brother, and pending the appeal, the parties with the brother compromised the entire claim for two-thirds of the damages recovered, and discharged the judgment and the appeal suit, all without the knowledge o'f plaintiff’s attorneys; it was held, that the latter had a lien for their costs which was not affected by the settlement, and a motion to set aside an execution issued by them was denied unless such costs were paid.

The lien of the attorney does not attach until a verdict or j udgment fixes the right to costs.

Therefore, where pending an appeal from a judgment, the parties settled the litigation, leaving unpaid the costs of the attorneys who recovered the judgment, it

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was held, that they had no lien on the judgment or fund for their costs in the court of appeals.

(Before Oakley, Oh. J., and Mason, Campbell, and Paine, J. J.)

October 25, 1851.

The plaintiff sued Bartlett in this court in 1847, in an action of trespass, the cause was tried, a verdict given for the plaintiff for upwards of fifteen hundred dollars, and a judgment was entered on the verdict. His attorneys in the suit were Messrs. Brown and Mathews. Bartlett appealed to the court of appeals. The plaintiff then assigned the judgment to his brother James Sweet. On the 5th June, 1851, while the cause was on the calendar of that court, the respondent’s attorneys having noticed it for argument, Bartlett and the two Sweets got together and settled the whole suit and litigation, Bartlett paid one thousand dollars in full, and the plaintiff discharged the judgment and the suit in the court of appeals. The attorneys, B. and M., were not present, and knew nothing of the affair. All the parties to it knew that no part of their costs of the litigation had been paid. Bartlett gave the plaintiff’s attorneys notice of the settlement of the suit, which they disregarded, and on the notice of argument previously given, took a default in the court of appeals by which the judgment,of this court was affirmed, obtained a remittitur, and entered a fresh judgment thereon in this court for the amount of the original recovery and the costs in the court of appeals. They then issued an execution on the latter judgment, directing the sheriff to levy the whole amount of the debt and costs. Bartlett thereupon moved to set aside the last judgment and the execution as irregular.

J, T. Brady, for Bartlett.

N. B. Blunt, for the attorneys Brown and Mathews.

By the Court.

(all the Justices of the court concurring.) — There is good ground to believe, from the circumstances, that the settlement was not made by Bartlett in good faith. On Mr. Brown asking him what they had been

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doing, he said, “ we have been doing you out of some costs intimating clearly that they had proceeded regardless of the attorneys’ costs. The question of the attorneys’ lien for such costs has been much discussed. In England, the decisions upon it are conflicting, and there were variant decisions in our late supreme court. It is difficult to determine what is now the rule in the supreme court. Whatever that may be, this court decided in Smith v. Lowden, 1 Sand. 696, that it would establish such a practice as would be consistent with equity and justice. We determined that we would sustain the lien of the attorney, whenever it could be done without infringing upon the statute of set off, and that where his right to the costs was established, we would protect it so far as we could, because however the matter might be technically, the costs were in reality his property. We adhered to this rule in Gihon v. Fryatt, 2 Sand. 638.

An attorney has no lien for his costs until a judgment is entered, or at least not till after verdict, and until the lien attaches, the parties can settle the suit regardless of his claim for costs. But after his right to costs is fixed by a verdict or judgment, then the parties are no longer at liberty to settle, disregarding his interests in the matter.

In this case, as to the costs on Bartlett’s appeal, that was a new suit which the parties could settle, as if it were a suit in this court before verdict. The attorneys had no lien for the costs in the court of appeals. But as to the costs in the original-judgment, those were their property, and the plaintiff had no just right to compromise so as to leave them unpaid.

On payment to the attorneys of those costs in the suit in this court, the execution and the judgment last entered will be set aside, without costs of the motion to either party. Otherwise, the motion is denied.