Adee v. Adee ( 1900 )

Hirschberg, J.:.

The petitioners are the attorneys for Ella L. Millard, one of the defendants in an action brought for the purpose of obtaining a judicial construction of a will, an accounting by the executors, a distribution of the estate of the decedent and such other relief as might be' proper. They served an answer in her behalf, in which they joined in the prayer of the complaint, and asked for a partition of the real estate and distribution of the proceeds among those entitled. The real estate was afterwards sold pursuant to a judgment prior to September 1, 1899, and the share of Mrs. Millard amounts to $3,175.13. This share is subject to a lien in favor of one George F. Peck, by virtue of a mortgage executed shortly after the commencement of -the action by Mrs. Millard for'the sum of $5,00.0. An action has been brought by her to set aside the mortgage, and an order has been procured by her directing the payment of her share to the treasurer of Westchester county pending its determina^ tion, but the summons has not yet been served qn Peck.

The petitioners received their costs in the suit for the construction of the will, etc., amounting to $354.91, and also an extra allowance of $2,000.. They claim, however, that their services to Mrs. Millard in that action, and in certain proceedings in the Surrogate’s Court, were reasonably worth the sum of $5,000, in addition to the taxed costs and disbursements, and that they have an attorney’s lien upon the proceeds of her share for the payment of the balance, viz., $3,000, so far as it will go in that direction. They applied to the Supreme Court at Special Term for an order determining their lien and directing payment of the fund to them, in which proceedings Peck was made a party, and this appeal is taken from an order denying their application.

The order was clearly proper. Whether the petitioners have any claim upon their client for additional compensation need not be determined. There was no express agreement as to the amount of such compensation, and the sum of $2,354.91 would seem' to be • ample pay for appearing .in the suit. Mrs. Millard’s share in the property being mortgaged for more than twice its value, her pecuniary interest was necessarily very slight, and on the papers, as pre-. sented, it would seem that the net cash value of her share in the estate was reduced in proportion to her fractional interest in consequence of the payment of the extra allowance to her attorneys. Whether the services which resulted in that reduction would justify an additional charge against her of $3,000 may well be. doubted.

On the facts disclosed, however, the petitioners have no lien on the fund. So far as the charge covers services in the Surrogate’s Court there can be no lien on the fund resulting from the action in the Supreme Court as against Mr. Peck, nor is there any lien under section 66 of the Code of Civil Procedure. The amendment to that section effected by chapter 61 of the Laws of 1899, by which the word “ claim ” was inserted in the section, did not take effect until September 1, 1899. The section, as amended, was prospective only in its operation and could have no effect upon a judgment previously recovered. (Goodrich, v. McDonald, 112 N. Y. 157, 162.) The section, at the time of the recovery of the judgment, read as follows: “Prom the commencement of an action, or the service of an answer containing a counterclaim, the attorney who appeal's for a party has a lien upon his client’s cause of action or counterclaim, which attaches,” etc. Mrs. Millard had neither a cause of action or counterclaim in. the suit in question within the meaning of section 66, and her attorneys, therefore, had no statutory lien upon the fund now in court.

In the view taken it is unnecessary to determine the question of priority between Mr. Peck and the petitioners, nor the propriety of litigating their rights in the premises by a summary proceeding in an action to which one of the claimants is not a party. Under the peculiar circumstances of this case, and with an action already pending to determine the rights of one of the parties interested, any discretion vested in the Supreme Court to remit the petitioners to a suit for the relief sought, rather than to determine the merits summarily, would be wisely exercised, and should not be disturbed upon appeal.

The order must be affirmed.

All concurred.

Order affirmed, with ten dollars costs and disbursements.