Johnson v. Haynes , 44 N.Y. Sup. Ct. 303 ( 1885 )

HabdiN, P. J.:

¥e think the complaint in this action stated a cause of action for breach of the bond executed by the constable and his sureties; it was therefore incumbent upon the plaintiff to establish a breach of the bond and damages in consequence thereof, before a recovery could be had in this action under the complaint.

Apparently upon the evidence before us no breach of duty or of the bond was shown to have been committed by Haynes the constable in his lifetime ; nor was any breach of the bond shown to have been committed by the administratrix of his estate: no moneys were shown to have been received by him or by his administratrix, belonging to the plaintiff. It was proper for Haynes to employ an attorney to defend the action brought by Fowler and Lyons. It was also proper for the administratrix of Haynes, when she was substituted in his place, to employ an attorney to care for her rights and to defend the appeal which was taken in this action. We think the attorney was entitled to a lien upon tlie fruits of the action to secure bis services rendered therein. His. appearance and defense of that action were known to the present plaintiffs, and it 'is not a mistake to suppose that they acquiesced in his so conducting the .action which was defended by Haynes in an effort to protect the rights of the plaintiffs h erein. Unless the lien of the attorney was satisfied, the administratrix was not entitled to the fruits of the litigation. (Code of Civil Pro., § 66.) We think, under the circumstances of this case, that it was just and equitable that the lien of the attorney upon the moneys received in the Fowler and Lyons suit, should be satisfied from and out of the proceeds of that action before the same were paid to the plaintiff. We think the plaintiff failed upon the trial to show that after satisfying the lien of the attorney, any moneys were in the hands of the attorney or of the administratrix which belonged to the plaintiff. We are therefore of the opinion that the result reached by the Circuit Court was just and equitable, and that no breach of the bond was shown entitling the plaintiff to recover of the administratrix or of the other defendants, who were sureties in the bond given by the deceased constable. These views lead to an affirmance.

Judgment affirmed, with costs.

Follett and YaNN, JJ., concurred.

So ordered.