
    Levis v. Burke.
    
      (Supreme Court, General Term, Fifth Department.
    
    January 11,1889.)
    1. Bailment—Injuries by Bailee—Action—Pleading.
    A complaint alleging the hiring by defendant from plaintiff's assignor of a piano, which defendant was to return in good order, and for damages to which, while in his possession, he was to hold himself responsible; and also alleging that it was damaged to a certain extent,—is fatally defective, in omitting to allege' that the hiring had ceased; that defendant had returned the piano, or given the owners notice to remove it; and that the injury was done to it while in defendant’s possession.
    2. Attorney and Client—Attorney’s Lien—Counter-Claim—Settlement.
    Code Civil Proc. Ñ. T. § 66, giving an attorney a lien from the commencement of the action, or the service of an answer containing a counter-claim, on his client’s cause of action or counter-claim, gives a lien only on a cause of action in favor of a defendant, on which he might recover an affirmative judgment; and, where no answer is filed, a settlement of the parties cannot he set aside, and the action continued to judgment, for the purpose of protecting the rights of defendant’s attorney. Following Pierson v. Safford, 30 Hun, 521.
    8. Practice in Civil Cases—Dismissal—Stipulation—Appeal. ■>
    Where a stipulation for dismissal of an action purporting to have been signed by defendant, but not proved as to him, is presented, but, contrary to the stipulation, judgment is rendered, the proper remedy is by motion to set aside the judgment, thus raising the question of the validity of the stipulation, and not by immediate appeal.
    Appeal from Monroe county court.
    Action by Samuel J. Levis against William J. Burke for damages for injuries to a piano hired by defendant. Plaintiff obtained judgment in the municipal court of Rochester, which was reversed by the county court, and he appeals.
    Argued before Barker, P. J., and Haight, Bradley, and Dwight, JJ.
    
      
      T. S. Starks, for appellant. James Murphy, for respondent.
   Dwight, J.

The complaint alleged a hiring by the defendant, from the plaintiff’s assignors, by written contract, of a piano at a price named, payable quarterly in advance, which the defendant was to return in good order, and to hold himself responsible for damage to the same while in his possession; the hiring to continue until the defendant should notify the owners to remove the piano. There was the further allegation that “said piano was greatly damaged and injured, to the extent, namely, $45, ” for which sum, with interest, the plaintiff demanded judgment. The complaint was verified and the written contract was attached. On this complaint the plaintiff went into the municipal court, -on the return-day of the summons, and (the defendant not appearing, was permitted, without making any proof, to take judgment for damages, $47.70, including interest “as claimed in the complaint.” This judgment was manifestly erroneous. There was no allegation in the complaint which charged the defendant with liability for the damage to the piano. It was not alleged that the hiring had ceased; that the defendant had returned the piano, or given the owners notice to remove it; nor that the injury was done to it while in his possession. Moreover, the damages were unliquidated, and not capable of ascertainment by computation only, and the cause of action was, therefore, not one for the recovery of money only, or on account, within the meaning of the statute which authorizes the municipal court to render judgment on a verified complaint, without further proof. Laws 1876, c. 196, §§ 7, 9, as amended by Laws 1879, c. 230, § 3.

But on the argument of the defendant’s appeal in the county court, the plaintiff (respondent in that court, and appellant here) produced a stipulation, which purported to be signed by the defendant in person, consenting that the action and appeal might be discontinued and dismissed, without costs to either party as against the other, and that an order to that effect might be entered, without further notice, on filing the stipulation. The stipulation was not proved by acknowledgment of the defendant, or otherwise, though its authenticity does not appear to have been questioned; and the record does not show that any motion was made thereupon to dismiss the appeal, nor that any order has been entered to that effect, or discontinuing the action. The court disregarded the stipulation, and rendered the judgment of reversal from which the appeal was taken to this court. That judgment seems to have been rendered upon the assumption that the attorney for the defendant had a lien for his costs, which entitled him to prosecute the appeal for their recovery, notwithstanding the settlement of the controversy by the parties. That assumption was not well founded. Several decisions of this court have given construction to the provision of the Code which gives to the attorney a lien for his costs before judgment. Code Civil Proc. § 66. That statute gives to the attorney for either party a lien “from the commencement of the action, or the service of an answer containing a counterclaim,” only “upon his client’s cause of action or counter-claim,” as the case may be. This court held, in Pierson v. Safford, 30 Hun, 521, that a counterclaim consisting of a cause of action in favor of defendant, upon which he might recover an affirmative judgment, was necessary to bring the case within the provision of section 66; and that a set-off, though pleaded as a counterclaim, which could be applied only in reduction of the plaintiff’s recovery, did not constitute a counter-claim, within the meaning of the section referred to, to which the lien of the attorney could attach; and the decision in that case affirmed an order of the special term denying a motion of the defendant’s attorney to set aside a settlement made by the parties, and an order of discontinuance, and for leave to continue the action to judgment for the purpose of protecting his own rights therein. In Quinlan v. Birge, 43 Hun, 483, this court held that, even in case of an affirmative cause of action, the attorney could no.t prosecute the action after a settlement made by the parties-before judgment, verdict, or decision, except by leave of the court, on notice-to all parties interested, and on showing that the settlement was intended, or would have the effect, to defraud the attorney of his costs, and that they could not be collected from his own client, or out of the fund received in settlement of the action to which his lien already attached. In the case at bar the defendant had no counter-claim, even in name. Indeed, he had interposed no answer to the plaintiff’s complaint; and under the former of the decisions cited the attorney had no lien for his costs before judgment. But it does not follow that the judgment of the county court should be reversed. The effect of such reversal would be to affirm the judgment of the municipal court, for which the appellant has no right to ask while he stands upon the-stipulation produced by him, which, if effect is to be given to it, discontinues the action as 'well as the appeal. We think he mistook his remedy in-appealing to this court from the judgment of the county court. He should-rather have made his motion in the latter court to set aside its judgment, and for leave to enter an order of discontinuance on the stipulation. That motion would have brought up the question whether the stipulation was the genuine and valid act of the defendant. The appeal to this court being dismissed, the plaintiff will still have the remedy suggested in the county court. The appeal to this court should be dismissed, without costs to either party. All concur. So ordered.  