
    Patrick A. O’Brien, Respondent, v. Metropolitan Street Railway Company, Appellant.
    
      Supplemental answer — the granting of leave to serve it is discretionary — when leave to set up a release hy the plaintiff should not he denied— the interest of an attorney in the recovery, pi'otected.
    
    Notwithstanding the mandatory language used in section 544 of the Code of Civil Procedure, the question whether the court will allow a supplemental answer: to be served in an action rests in its discretion.
    An application by a defendant to be allowed to set up by supplemental answer a-settlement of the action by a release executed by the plaintiff should not be-denied, merely because the plaintiff’s attorney has made an agreement with his client that he is to receive thirty-five per cent of the recovery as compensation for his services in the action.
    In such a case, if the attorney desires to prosecute the action in the name of his-client, but for his own benefit, he will be permitted to do so upon condition-that he assumes liability for any costs which the defendant may recover in the action.
    Appeal Dy the defendant, the Metropolitan Street Railway Company, from an order of the Supreme Court, made at the New Y ork Special Term and entered in the office of the clerk of the county of New York on the 11th day of January, 1898, denying the defendant’s motion for leave to serve a supplemental answer setting up-a settlement between the parties to the action.
    
      Charles F. Brown, for the appellant.
    
      G. Washbourne Smith, for the respondent.
   Barrett, J.:

We agree with the plaintiff’s attorney that, notwithstanding the mandatory language used in section 544 of the Code of Civil Procedure, it was within the discretion of the court below to grant or ■ -refuse this application. That discretion is, however, re viewable •here. In this case we see no reason why the application should have .-been refused. It is conceded that the plaintiff has settled the case and has given the defendant a release. Why should not the defendant be permitted to plead the release? None is suggested save that •the plaintiff’s attorney has made an agreement with his client whereby he is to receive as compensation for his services a sum equal to thirty-five per cent of the recovery; but this is no reason why, as between the plaintiff, and the defendant, the release should mot be pleaded. The attorney’s rights, under his agreement with •his client, are not affected by the release, nor will they be prejudiced by the plea thereof. If he • desires to prosecute the action in the plaintiffs name for his own benefit he may still do so. In that case, .Jhowever, he should take the risk of liability for the defendant’s ■costs in case he fails upon the merits.

There is no laches here. The delay in moving was slight and ■could have prejudiced neither the plaintiff nor his attorney. Certainly it is not shown that injustice would be wrought by allowing "the supplemental answer.

The attorney can be amply protected by permitting him to continue the action, if he so elects, for the purpose of satisfying his lien, but, at the same time, requiring him to assume the payment of •any judgment for costs which the defendant may recover.

The' order appealed from, should, therefore, be reversed, with ten ■«dollars costs and the' disbursements of this appeal, and the motion .¿granted, with leave, however, to the attorney to continue the action Tor the purpose indicated, upon his assuming the payment of any .judgment for costs which may be recovered by the defendant.

Van Brunt, P. J., Rumsey, Ingraham and McLaughlin, JJ., -concurred.

Order reversed, with ten dollars costs and disbursements, and "motion granted, with leave to the attorney to continue the action for "the purpose of satisfying his lien, upon his assuming the payment of •any judgment for costs which may be recovered by the defendant.  