Summary
In Marshall v. Meech (51 N.Y. 140) there was no question as to the amount due, but a referee was appointed to ascertain whether the opposing party, not the client, but one to be affected, had notice of the lien.
Summary of this case from In the Matter of the Application of KnappOpinion
Submitted May 11, 1872
Decided September term, 1872
H.C. Day for the appellant.
Delavan F. Clark for the respondents.
The appellant made the motion to set aside the satisfaction of the judgment in this action to the extent of his interest therein as attorney for plaintiff, and also for leave to issue execution on the judgment to collect his interest therein. The motion was denied at the Special Term, and the order of the Special Term was affirmed at General Term. No opinion was written at either term, and we are, therefore, without the precise grounds upon which the relief was denied.
It has long been settled that an attorney has a lien for his costs and compensation upon the judgment recovered by him. ( Ward v. Syme, 9 How. Pr. R., 16; Haight v. Holcomb, 16 id., 173; Fox v. Fox, 26 id., 409; Read v. Dupper, 6 T.R., 361; Rooney v. Second Ave. R.R. Co., 18 N.Y., 368; Ely v. Cooke, 28 id., 365; McGregor v. Comstock, 28 id., 237.) Such a lien existed before the Code, and is not affected by any provision of the Code. The lien exists not only to the extent of the costs entered in the judgment, but for any sum which the client agreed his attorney should have as a compensation for his services. To the amount of such lien, the attorney is to be deemed an equitable assignee of the judgment. To the extent of the taxed costs entered in the judgment, the judgment itself is legal notice of the lien, and this lien cannot be discharged by payment to any one but the attorney. The judgment debtor pays these costs to the party at his peril. But if the attorney claims compensation beyond the taxed costs, under some agreement with his client, express or implied, his lien for such compensation can be protected against payment to the client only by notice to the judgment debtor.
Here there was no dispute as to the amount of the compensation. The attorney was to have one-half of the amount received. The only controversy upon the motion was as to notice to the defendants. In the affidavits, notice was alleged upon the one side and denied upon the other, and the court at Special Term referred the question of notice to a referee. The referee, after hearing the parties orally, and the same conflict appearing before him which appeared in the affidavits, found that the notice had been given as alleged by the attorney, and reported his finding with the evidence to the court. This reference was merely to inform the conscience of the court. The finding of the referee did not conclude it. It could adopt and act upon it or could disregard it, and draw its own conclusions from the evidence. The affidavits, the evidence taken by the referee and the finding of the referee, were all before the court, and it was still a question of dispute and conflict, and as such it comes before us. The courts below probably held that the notice was not satisfactorily shown, and I see no reason for disturbing this conclusion.
No error was, therefore, committed in denying the motion, so far as relates to all the claim of the attorney beyond the taxed bill of costs. But I see no answer to the motion to the extent of the taxed costs. As to them, the attorney's lien and the legal notice to the defendants were perfect. But my brethren differ with me as to the taxed costs. They hold, that when the judgment, as in this case, is for both costs and damages, it is not of itself notice of the lien of the attorney for the taxed costs, and that it furnishes such notice only in case it is recovered solely, for costs.
The order must, therefore, be affirmed with costs.
All concur.
Order affirmed.