
    Robert M. Clare, Resp’t, v. Samuel Lockard and Martin E. Halpin, Impleaded, App’lts.
    
      (City Court of Brooklyn, General Term,
    
    
      Filed November 27, 1888.)
    
    1 Estoppel—When person estopped.
    A person can only be estopped by doing some act, making some admission, or remaining silent in the face of some apparent duty to speak, thereby intending to influence the conduct of another or having reason to believe it would so influence such other person, which act or admission expressed or implied, of the person sought to be estopped is inconsistent with the claim he now asserts, and was acted on, or relied upon by the other party.
    2. Same—Lien of attorney—What does not amdunt to a waiver of.
    In a certain case the court opened a default upon condition that defendant Lockard should pay the plaintiff herein certain costs and serve a stipulation not to dispose ofa certain judgment against one Stegman, and making the judgment in this action a lien thereupon. Lockard paid the costs and served the stipulation. Said stipulation was signed and executed by Lockard alone and witnessed by Halpin, and acknowledged by Lockard before Halpin as a notary public. At that time and prior thereto, Halpin, as Lockard’s attorney, had a lien on the judgment against Stegman for his fees and costs in prosecuting that action. Held, that Halpin, by his conduct, had not estopped himself from asserting his lien against the claim of Clare’s lien under the stipulation.
    
      John Henry Hall, for resp’t; Martin E. Halpin, for app’lts.
   Van Wyck, J.

Clare having obtained by default a judgment against Lockard, Lockard, through his attorney, Halpin, on September 18, 1886, moved to open such default, which was opposed by Glare’s attorney, Hull, on the ground that the effort to open the default was intended to defraud Glare by enabling Lockard to collect or transfer his judgment against one Stegman, before Clare could secure a second judgment against Lockard if the default was opened. Of course the only damage Lockard could inflict in this respect would be to dispose of his interest in this Stegman judgment.

To prevent such a result the court opened the default on condition that Lockard should pay to Clare forty dollars costs and serve a stipulation not to dispose of the Stegman judgment, and making the judgment in Clare against Lockard a lien thereupon. Lockard paid the costs and served such stipulation. The case of Clare against Lockard was retired, resulting in a judgment against defendant. This stipulation was signed and executed by Lockard alone,, and witnessed by Halpin, and acknowledged by Lockard before Halpin as a notary public. At that time and prior thereto, Halpin had a lien on the Stegman judgment for his fees and costs in prosecuting the Stegman action.

This action is brought by Clare against Lockard and Halpin, to enforce the lien given by such stipulation. Plaintiff contended on the trial that his lien on the Stegman judgment was superior to that of the attorney, Halpin, The trial court found on this subject as follows: “That Halpin had a lien on the judgment recovered by Samuel Lockard against Lewis Stegman, for the amount of his costs and counsel fee in recovering said judgment, but by Ms own act, in giving said stipulation, Tie has made the same subsequent to the lien of the claim of {Clare) the plaintiff in this action.

The only question presented by this appeal is whether or not Halpin, by his conduct in the premises, has estopped himself from asserting his lien against the claim of Clare’s lien under the stipulation. At the time the motion to open the default was made, Halpin had a lien for services on the Stegman judgment. At that time Clare’s attorney, Hull, knew that Halpin rendered the services in the Stegman case, and that the law gave him a lien on the judgment for such services Halpin did not execute the stipulation, and did not make any agreement that his lien should be subordinated to that of Clare’s claim. Clare’s attorney must have known that Lockard could not, by an act or transfer made by him, deprive his attorney, Halpin, of his lien for services on the Stegman judgment. Hull’s own testimony shows that his only desire was to prevent Lockard from disposing of his rights in this .judgment pending the prosecution of action of Clare against Lockard to a second judgment. If he had desired that Halpin should waive his lien in favor of Clare, he should have requested the court to make this a condition to the opening of. the default, though, if such a request had been made, it would hardly have appealed, to the equity of the court, for it is manifest that Halpin had rendered great services in the Stegman case to his client Lockard. The fact that Halpin was a witness to the stipulation, and, as a notary, took the acknowledgment of Lockard to same, could in no way have influenced or induced Clare or his attorney to accept the provisions of the order. It was done after, and in pursuance of, the order directing such course. Can it be seriously urged by anyone that the stipulation would have been rejected if some third person other than Halpin had witnessed and taken Lockard’s acknowledgment ? It is clear that Hull’s only fear was that, in case the default was opened, Lockard would transfer or dispose of his interest in the Stegman judgment, and not that Halpin would dispose of his lien upon such judgment, for in the latter he (Hull) had no concern, and against the former the court protected him by directing the stipulation given. We cannot see that Halpin, by act, word or silence in this matter, misled or induced Hull to make any step that he has taken on the motion, or since, in pursuance of the order granted thereon.

It is well settled that a person can only be estopped by doing some act, making some admission, or remaining silent in face of some apparent duty to speak,- thereby intending to influence the conduct of another, or having réason to believe it would so influence such other person, which act or admission, expressed or implied, of the person sought to be estopped is inconsistent with the claim he now asserts, and was acted or relied upon by the other party. N. Y. Rubber Co. v. Rothery et al., 107 N. Y., 310; 12 N. Y. State Rep., 53; Viele v. Judson, 82 N. Y., 32; Hill v. Epley et al., 31 Penn. R., 331.

Judgment reversed in so far as the same affects the plaintiff and defendants Lockard and Halpin, and new trial ordered as to such parties, with costs to abide the event.

Clement, J., concurs.  