
    Gaetano Russo, Respondent, v. Louis F. Darmstadt and Others, Partners under the Firm Name of Darmstadt, Scott and Courtney Company, Appellants.
    Second Department,
    January 18, 1907.
    Attorney and client — settlement by plaintiff without compensating attorney — when defendant entitled to dismissal of action.
    When after service of summons the plaintiff makes a settlement with the defendant without providing for the payment of his attorney’s contingent fee- and thereafter refuses to verify a complaint, the defendant is entitled to a dismissal of the action for failure to serve such complaint, and the motion to dismiss should not be conditioned upon a payment by the plaintiff to his att'orney of his portion of the settlement.1
    An attorney’s lien cannot bar a settlement by the client and the attorney’s remedy is not a motion in the action, but a proceeding under section 66 of the Code of Civil Procedure or an action in equity to establish and enforce his lien.
    • Appeal by the defendants, Louis F. Darmstadt and others, partners, etc., from an order of the Supreme Court, made at the Kings County Special Term and entered in the .office of the clerk of the county of Kings on the 26th day of June, 1906, as resettled by an order entered in said clerk’s office on the 24th day of August, 1906, denying the defendant’s motion to dismiss the complaint; and also a separate appeal from an order entered in said clerk’s office on the 28th day of June, 1906.
    
      Louis Cohn [Frank V. Johnson with him on the brief], for the appellants.
    
      Francis L. Corrao, for the respondent.
   Jenks, J.:

The action is for negligence. The appeal is from an order of the Special Term of August, 24, 1906, which resettled an order of June 26, 1906. On June 12, 1906, the defendants moved for an order dismissing the complaint with costs and directing judgment in favor of the defendants and against the plaintiff for costs and disbursements. The motion was upon an affidavit that, the action was begun on or about October 18, 1905, by service of summons; that defendants appeared on November 2,1905, with a demand fan service of a copy of the complaint and all other papers upon their attorney ; that the plaintiB never obtained any extension of time, and that, therefore, his complaint was due on November 22,1905 ; that a copy had never been served and the plaintiB was in default. On the motion day the plaintifi’s attorney appeared and submitted his affidavit that he had been retained in the action which was for personal injuries suffered while at work for the defendants; that he had served the summons; that thereafter the defendants had compromised with the plaintiff and settled with him for the sum of $150 “ as deponent is informed and verily believes, by the plaintiB without the consent of deponent and without paying any costs' to him; that because of the said compromise plaintiB refused to sign, a complaint herein and refused to do anything; that deponent had an agreement to be paid one-half of the sum of money recovered herein by compromise or otherwise with plaintiB.” He asked that the motion be granted upon such terms as seemed just and proper to the court. The court granted the motion upon condition that plaintiB pay twenty-five dollars to the attorney Avithin ten days, otherwise denied it with ten dollars costs. The order first entered .was afterwards resettled as to .certain recitals.. There are two appeals, one from the original order, onefrorh the order as resettled. It is to be noted that a motion is granted upon condition that the plaintiff pay his own attorney, twenty-five dollars. I take it that the defendants compromised this case after service of the summons, and that the neglect of plaintifi’s attorney to serve the complaint was due solely to the refusal of his client to proceed in the action. ■ Upon the attorney’s own showing, then, the motion is based'upon a settlement which ended the claim and the cause of action thereon. The attorney’s lien could not bar it. (Peri v. N. Y. C. R. R. Co., 152 N. Y. 521; Fischer-Hansen v. Brooklyn Heights R. R. Co., 173 id. 492.) While I do not suppose that the attorney would object if the twenty-five dollars Avas forthcoming from the defendants instead of the plaintiB, yet the legal situation is that the defendants, who are entitled to their order upon this showing of delay (Code Civ. Proc. § 480), .cannot obtain it unless the plaintiB pay the-twenty-five dollars to his own attorney. Inasmuch as the plaintifi’s attorney deposes that his client will not do anything, the effect of this order is to continue the case for the benefit of the attorney. Such a continuance may be ordered ex necessitate as a remedy against fraudulent settlements (Fischer-Hansen v. Brooklyn Heights R. R. Co., supra) ; but Yank, J., for the court in the case last cited, says that such form of relief is “ clumsy and illogical, because it authorizes the trial of a dead lawsuit in the interest of one who never owned the claim upon which it was founded.” (See, too, Smith v. Acker Process Co., 102 App. Div. 170.) The attorney has his remedies under section 66 of the Code of Civil Procedure, (which is not in its nature a motion in the action, Peri v. N. Y. C. R. R. Co., supra), and also by an action in equity to establish and to enforce his lien. He may follow the proceeds of the settlement, and if they have been paid over to the client ” he has the right to insist that his share be ascertained and paid to him, for fhe defendant is estopped from saying that with notice of the lien he parted with the entire fund.” (Fischer-Hansen v. Brooklyn Heights R. R. Co., supra.) In National Exhibition Co. v. Crane (167 N. Y. 505), cited by the learned attorney, it was held that the court in its inherent power to prevent a stain on its record by collusion and fraud could impose the payment of costs to the defendant’s attorney by plaintiff when after joinder of issue, notice of trial and placing of cause on -the calendar, the defendant, without the knowledge or consent of his attorney, without paying or providing for the payment of costs, and for the purpose of depriving him of his costs, stipulates for a discontinuance without costs. The power was not exercised perforce of an attorney’s lien, forasmuch as there was none in that case. That decision does not control this case, which merely presents the feature of a settlement after summons served without regard to the attorney’s lien.

Both orders are reversed, without costs, and the motion is granted, with ten dollars costs, without prejudice to the attorney’s rights to enforce his lien.

Woodward, Hooker, Rich and Miller, JJ., concurred.

Orders reversed, without costs, and motion granted, with ten dollars costs, without prejudice to the attorney’s rights to enforce his lien.  