Steenburgh v. Miller

Herbick, J.:

The compensation of Swanick for his services in foreclosing said mortgage is regulated by the agreement between himself and the plaintiff, and for the amount of it he had a lien upon the cause of action which would attach to the judgment and the proceeds thereof in whosoever hands they should come. (§ 66, Code Civ. Proc.)

Swanick’s interest in the action, then, was greater than that of the First National Bank of Saratoga Springs, and no arrangement between the parties could diminish that interest or in any way dispose of it. In the absence of any charge of misconduct he was as much entitled to have charge of the prosecution of the action for his benefit as was the First National Bank of Saratoga Springs.

It will be observed that the action is continued in the name of the same parties, and that the First National Bank of Saratoga Springs asked to have it so continued and prosecuted for its benefit.

It has not been an uncommon thing for courts to permit attorneys to continue the prosecution of suits for the benefit of such attorneys where the suits have been settled out of court, regardless of the lien of the attorneys for their costs and compensation, and it seems to me proper in this case to permit the attorney who commenced the proceedings, and who now has a greater financial interest in the proceedings than any other person or party, to continue them to judgment, unless by some misconduct or delay upon his part he has prejudiced the rights or interests of other persons interested in the final recovery.

The order should be reversed, with ten dollars costs and disbursements of this appeal, and the motion denied, with ten dollars costs.

All concurred, except Putnam, J., not acting.

Order reversed, with ten dollars costs and disbursements of this appeal, and motion denied, with ten dollars costs.