
    Benjamin E. Valentine, Respondent, v. C. Amory Stevens, as Trustee, Appellant.
    Second Department,
    November, 1905.
    Attorney’s lien —when an order discontinuing action but preserving jurisdiction as to attorney’s costs is not an adjudication of his right thereto., '
    An attorney, claiming a lien for legal services formerly rendered in an action of partition, which had never been discontinued.by order, but as to which there was a former -agreement that each party should' pay their own costs and the litigation be discontinued, entered into an agreement with those holding title to the land that said action be discontinued to clear the title, and that the proceeds of a sale be subject to'a determination as to the validity of bis claim. This latter agreement also provided for the payment of “ all costs, allowances and compensation which may be awarded” said attorney, but provided further that “Nothing in this instrument shall be considered-as an admission * * ■' * as to the validity" of the claims.” An order of discontinuance was thereupon entered, which stated that it was made without prejudice to “any claims of plaintiffs attorney for costs, allowance and compensation for services in respect to the subject matter * * * for the determination of which matters alone, jurisdiction Of this action is' to be further retained by the court with like effect as if a judgment had been this day entered instead of a discontinuance.” Held, that the said provisions of the order were not an adjudication that the-attorney was entitled to costs, which question'still-remained to be determined; that said order did not nullify the original, agreement that the parties in the . partition action were to pay their own costs.
    • Appeal by the defendant, 0. Amory Stevens, as trustee, from so much of a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Nassau on the 27th day of, December, 1902, upon, the report of a, referee, as adjudges that the plaintiff reóover from the defendant the sum of $540 with interest thereon.
    
      George D. Beattys, for the appellant.
    
      Benjamin E. Valentine, respondent; in person.
   Jenks, J.:

The defendant as trustee contracted to sell realty. . The search by the purchaser disclosed a lis pendens filed in 1887 ..in an action for partition. This plaintiff was the attorney of record for the plaintiff in the partition action. No order of discontinuance had ever been entered. When the plaintiff was approached on the subject of removing the objections of the purchaser, he asserted certain equitable claims against the premises, founded upon services in various litigations. As the result of negotiation an agreement was executed on February 8, 1902, between the plaintiff, the trustee, and the cestuis que t/rustent, to the end that the objections of the purchaser, might be obviated, the realty be conveyed and the plaintiff be remitted to a fund derived from the purchase price to be deposited in a trust company to the credit of an action between, the plaintiff and the trustee. Thereafter an order of discontinuance was entered and a reference ordered upon the claims of the plaintiff. Subsequently the proceedings were stipulated into this action, which was tried before a referee who gave judgment for the defendant save in one respect. The plaintiff claimed $1,000 compensation for his legal services in the partition action. The referee decided that the claim was embraced in a certain item of • $1,000 which was barred by the Statute of Limitations, but hé also decided that the plaintiff was entitled to costs and an extra allowance in the partition action, and accordingly gave judgment for $540 and costs. The plaintiff does not appeal. The defendant appeals only from that portion which awards the said $540. The sole question is whether this part of the judgment is right. The ground for the decision of the learned referee is stated in his elaborate opinion as follows: “But although I am satisfied that the item of $1,000 claimed against Mrs. Mary A. Wood, included-the plaintiff’s charge for services in the Oarrie M. Wood partition action, and that that claim is barred by the statute, yet in view of the order of the court dated February 15, 1902, made in a proceeding to secure a discontinuance of that action, and in which the application was granted without prejudice to any claims óf plaintiff’s attorney for costs, allowance and compensation foi\ services in respect to the subject matter, for the determination of which matters alone jurisdiction of this action is to be further retained by the court with like effect as if a judgment had been this day entered instead of a discontinuance,’ and I was appointed referee to take proof and report the same to the court with my opinion thereon as to what amount as costs, allowance and fees as attorney and counsel said plaintiff’s attorney should be awarded,’ and of the stipulation entered into on the trial óf this action that that proceeding ‘ be merged in 'the present action, and that the issues in that proceeding be deemed a. part of the issues in this action,’ I think that the plaintiff is entitled to the taxable costs and a reasonable allowance in that action, since lie certainly would have been awarded such costs and allowance on the entry at the present time of a judgment-such as the'court contemplates.”

I do not concur in this view. The purpose of the agreement of February ,8, 1902, was but to remove the obstacles in the way of a conveyance of the' realty and to remit the plaintiff .to a fund. It provided, it is true, that out of snch amount should be paid, first, “all costs, allowances and compensation which may be awarded to-said Valentine in said partition action, or by the court in such action as may be instituted between said • Valentine and said Stevens,, trustee, to determine-the amount thereof.” , But I think that the parties did not intend to’ secure to the plaintiff anything more than lie could establish by his evidence. Indeed, the final clause of ■the'.agreement reads : “ Nothing in this instrument shall be considered as an admission; by any of 'the undersigned (excluding said Valentine) as- to the Validity of the claims of said Valentine.or of the amount thereof.” The expression “ costs, alloxvances and compensation” is a familiar term commonly used to describe the charge of an attorney, both as fi&ed by statute and also by agreement or by proof upon a qucmtum- meruit. The order of discontinuance ófíFebruary 15, 1902, provided that it was.made without prejudice. to. “'any' claims of plaintiff’s attorney for costs, allowance and ■compensation for services in respect to the subject matter.” - This provision- did not assure nor purport to assure to the pláinti-ff that",he ixvas:-entitled to costs or allowance or compensation. The .‘order-then.-provided, “ for the determination of which matters alone, -jurisdictioni-of this action is to be further retained by the court with "like effect as. if.-a judgment had been this day entered instead of a discontinuance.” - It- 'seems to me that this provision was simply to keep- the action",alive ;in Order that, notwithstanding the discontinue aneé,-a reference might be had in that action "to determine the claim of the plaintiff, whatever, it might, be. The discontinuance, in other Words, was limited until the claim of. the plaintiff fgr legal services in that action was determined by a reference in that action. The expression, “ with like effect as if a judgment had been this day entered,”- is to offset the previous general provision for a discontinance, and did not and was not intended to operate as an adjudication that the plaintiff was entitled to costs and an allowance irrespective of his right thereto as it might be proved or disproved in the proceedings. In other words, this provision did not assure the plaintiff costs and allowances absolutely and in any event. A judgment can be entered without -costs and without an allowance if the parties so provide. On the trial the plaintiff read in evidence the agreement of December, 1887, whereby, among other matters, the discontinuance of this action was provided for. A provision therein read : Each party is to pay their own costs in all litigations now pending and to be discontinued.” There is no proof whatever that this agreement was ever annulled, rescinded or modified. There is no proof that any steps of any kind were ever taken in the action thereafter. But a formal order was never entered and the lis pendens was never canceled. But so far as the fact of discontinuance was concerned, a formal order therefor was not necessary. (Hempy v. Griess, 30 .App. Div. 434.) “ After an action has been discontinued by a party it should not be again restored unless the order was obtained by fraud.” (Smith v. Green, 14 Hun, 529.) I think that the court did not intend and, in fact, did not by the provision as to judgment,, restore the action so as to nullify the formal agreement for a discontinuance, but merely inserted the provision that the action might live so far as was necessary to carry the reference therein provided for. Otherwise there would be the anomaly of a reference at the foot of a discontinuance. And-1 think that upon the record the agreement or stipulation fixed and determined the right of the plaintiff to any costs or allowances in the partition action adversely to him.

Such was the'view of the plaintiff. For it appears from the record on the appeal from the order in this case ( Valentine v. Stevens, 86 App. Div. 481) that the plaintiff, with reference to this very order of the court, deposed: It will be seen by reference to said order that it was made without prejudice to the claims of deponent, as attorney for costs, allowance and compensation for services. It appearing subsequently that no costs or allowances were to “be colleeted by either party as against the- other the question of costs and allowances (on which deponent could have had a lien only) became entirely superfluous and immaterial and ,the question was one only of compensation between deponent and his. client, the plaintiff in the partition action.” And the learned plaintiff in his printed points argued, to this court that “ the fact that 'the referee used the words costs and allowances in connection with the. word ‘ fees ’ is mere surplusage. * * * It was clear that he intended. to decide, and did decide, only how much compensation plaintiff 'had earned in the partition ■ action. That was all he could decide as to this claim in either action. As the parties to the partition action had stipulated neither should have costs as against the other, * * * there could be no claim of plaintiff to be enforced against defendants, in the partition action by lien on the costs; and the word cornpensation covered the whole matter.”

The judgment feo far as appealed from is reversed and a new trial ordered,' costs to abide the final award of costsy upon the issue of - the right of the plaintiff to receive any costs or allowances. for services in the partition suit.

Hirschberg, P, J., Bartlett,, Rich and Miller, JJ., concurred.

Judgment so far as appealed from reversed.and new trial granted, costs to abide the final award of costs, upon the .issue of the right of the plaintiff to receive any costs or allowances for services in the partition suit.  