Citation Numbers: 6 Daly 237
Judges: Daly
Filed Date: 12/6/1875
Status: Precedential
Modified Date: 2/5/2022
There is no ground for this appeal. An attorney has a lien upon the judgment or the amount awarded to his client for his services, and where the defendant, after the recovery of the judgment, and after notice ■of the attorney’s lien, collusively settles with the plaintiff, the court will enforce the judgment to the extent of the attorney’s lien (Ward v. Wordsworth, 1 E. D. Smith, 598). There are cases which recognize the equitable right of the attorney to have his claim for his services protected by the court against _ any collusive settlement between the defendant and the plaintiff, even before the judgment, and in which the attorney has been allowed by the court to go on, enter up judgment, and enforce it to the extent of his claim for costs (Swaine v. Senate, 5 Bos. & Pul. 99; Toms v. Powell, 6 Espin. 40). But the court interposes only in such cases where it is manifest upon the facts, that the settlement between the defendant and the plaintiff was collusive and fraudulent; that is, made with an obvious intent to cheat or deprive the plaintiff’s attorney of his costs. Thus, in Swaine v. Senate (supra), which, I think, was the first of these cases, the interference of the court was put expressly upon that ground. Chambers, J., in that case,
In Owen v. Mason (18 How. 156), Judge Mullen refused to set aside the inquest where the defendant settled with the plaintiff after notice to the defendant from the plaintiff’s attorney, forbidding the settlement, except with him; but this was a special term case, in which the authorities do not seem to have been examined—at least, none are cited; and in Keenan v. Dorflinger (19 Id. 155), which was also a special term case, Judge Clerke is reported to have held that the lien of the attorney for his compensation attaches to the claim itself, and exists from the commencement of the action to the judgment; but he cites no authority. This is going farther than the cases by which this practice was originally established warrants, and is unsupported by the reasons upon which the attorney’s equitable claim
The notice of the attorney’s lien is dated on the 8th of April, 1874, and entitled in the suit as it existed before the de
It is charged in the plaintiff’s attorney’s affidavit that the -settlement was made with the plaintiff fraudulently to avoid the payment of any costs; that the plaintiff is irresponsible, old, and hardly better than a pauper; and that he, the attorney, believes the defendants knew these facts. The defendants’ affidavit, however, meets this allegation of the attorney’s belief by the statement that he expressly asked the plaintiff whether he “ settled this case to put bread and butter in his mouth, or on account of poverty,” and that the plaintiff replied that he did not. In view of the facts that the executor, Bradley, was merely acting in the matter as the representative of a personal estate of the original defendant, and that he was induced to make this settlement after the plaintiff had called upon him, as he testifies, more than two dozen times, proposing to settle, and as he made it with the express understanding and promise of the plaintiff ■that his lawyer would be paid out of the money received, which was §50 more than the plaintiff was willing to settle for, I do not see how we could hold judicially that the settlement was collusive and fraudulent for the purpose of depriving -or cheating the attorney and counsel out of their claim for their services, and unless this is shown there is no doubt of the rights of the parties to settle before judgment, for, in the language of Judge S. P. Strong, in Shank v. Shoemaker (18 N. Y. 490), “ There is no case which goes far enough to show that a party who has not obtained a judgment in his favor cannot settle a suit, because it may prejudice the possibility, or even probability, that his attorney might obtain his costs by a future trial, and a judgment in favor of his client.”
The order below should be affirmed.
Joseph F. Daly, J., concurred.
Order affirmed.