Schriever v. Brooklyn Heights Railroad ( 1899 )

GAYNOR, J.

This action was to recover damages for personal injuries. The plaintiff agreed to pay his attorney for his compensation 40 per cent, of the amount that should be realized in the action. The defendant and the plaintiff settled the case by the payment of $350 to the plaintiff. The settlement was made behind the plaintiff’s attorney, and without his knowledge. The plaintiff has spent the money, and is irresponsible. Section 66 of the Code of Civil Procedure gave the plaintiff’s attorney a lien on the cause of action for his compensation, and says that “the lien cannot be affected by any settlement between the parties before or after judgment,” and that “the court,” on petition, “may determine and enforce the lien.” And it is at last settled that no formal notice of such lien need be given to the opposite part)’. The statute is itself notice. Peri v. Railroad Co., 152 N. Y. 521, 46 N. E. 849. Am attorney’s lien is subject, however, to the right of the parties to settle the action. The policy of the law that litigation have an end would seem to forbid a contrary suggestion. But if the money be paid over to the client without the consent of his attorney, and such client is irresponsible, and does not pay the attorney, and the money cannot be reached by the court, the party paying it does so in his own wrong, and does not escape the attorney’s lien. He must nevertheless pay the attorney the amount of his lien. The sum paid in settlement serves as a basis for fixing the amount of the lien, the same as a judgment would. Ho objection has been made to the form of this proceeding, or request that evidence be taken. The motion for leave to continue the action is denied, but let an order be taken that the defendant pay to the plaintiff’s attorney $140.