David v. Billor , 1946 N.Y. Misc. LEXIS 3335 ( 1946 )

Lew, J.

The lienor urges that its lien with respect to the services rendered on behalf of the infant plaintiff may be determined and fixed only by plenary suit. The only specific reference to actions at law contained in section 189 of the Lien Law appears in subdivision 3 which provides that suits at law may be brought to enforce the lien by the lienor within the space of one year from payment, in the event such payment of proceeds of the claim has been made to the injured person without regard to the lien. Subdivision 10 further provides: “ Any such lien may be enforced by action or law against the person, persons or corporations claimed to be liable or against the fund deposited as hereinbefore provided in any court of record.” The use of the words “ or law ” have no meaning unless to reaffirm the availability of any remedy in law theretofore available. There is here no question of the enforcement of the lien. Its validity is not assailed but the injured person seeks to have its amount fixed. Clearly, the ancient power of equity in the protection of its infant wards and the remedies available to it to accomplish that purpose are includable in that language. Were the provisions of subdivision 3 intended to be all-embracive, no need would arise for the inclusion of subdivision 10. Conversely stated, the specific provision for a permissive suit at law in the specified situation implies, in addition to the permissive character, that other situations remain necessarily subjected not alone to suits at law, but are enforcible broadly pursuant to law. Accordingly, the motion is granted to the extent of referring the matter to Hon. Jacob Marks, Official Referee, to hear and report with respect to the amount" of the lien. In the meantime decision of the motion is otherwise held in abeyance.