
    In the Matter of the Application of Albers Realty Company, Respondent, to Cancel a Certain Lien Filed by Mulqueen & Mulqeen in a Certain Proceeding, Entitled “In the Matter of the Application of the City of New York, Relative to acquiring title, etc., for the widening of Riverside Drive on the easterly side from West 158th Street to West 165th Street, in the 12th Ward, Borough of Manhattan, City of New York.” Michael J. Mulqueen and Joseph F. Mulqueen, Appellants.
    First Department,
    October 21, 1910.
    Attorney and client — lien on award — when lien attaches—revocation of retainer before, commencement of condemnation proceedings.
    As the lien of an attorney on a verdict, decision or judgment in his client’s favor created by section 475 of the Judiciary Law dates only “ from the commencement of an action or special proceeding ” an attorney who was retained on a contingent fee to obtain an award on the condemnation of his client’s lands by the city of New York, but whose retainer was revoked before the service of the application for the appointment of commissioners of estimate and assessment in the condemnation proceeding, cannot assert a lien on the award subsequently made, as the condemnation proceedings were not “commenced” until the service of said application.'
    Under such circumstances the remedy of the attorney, if any, is by action against the client for a breach of contract.
    Appeal by Michael J. Mulqueen and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 10th day of March, 1910, confirming the report of a referee canceling a notice of lien for professional services.
    
      Michael J. Mulqueen, for the appellants.
    
      Benjamin L. Blauvelt, for the respondent.
    
      Benjamin Trapnell, for the Local Realty Company.
   Clarke, J.:

Henry F. Albers was the owner of certain property on Riverside drive. On June 5, 1903, he retained Mulqueen & Mulqueen as his attorneys to appear for and represent the said property in proceedings instituted or to be instituted by the city of Hew York to acquire title thereto, to take such steps as they might .deem necessary to obtain a proper award, and agreed to pay them ten per cent of the total sum awarded, the said attorneys out of the said percentage to pay for expert fees, surveys, proof of title and all other expenses necessary to establish the proper value of said property.

On February 10, 1905, by deed recorded February 18, 1905, Albers and his wife conveyed all the premises above mentioned to •the Albers Realty Company, a corporation then recently organized, of which Albers was the president, he and his wife and the bookkeeper in his employ being directors, and the bookkeeper being the secretary and treasurer. For this conveyance the corporation paid no cash, but issued all of its shares, and of those shares Mrs. Albers received and held nearly all. On February 13, 1906, the corporation counsel caused to be published in the City Record a notice of application to the Supreme Court on February 26, 1906, for thé appointment of commissioners of estimate and assessment in the matter of the city’s application to acquire title to lands and premises required for the purpose of widening Riverside drive from West One Hundred‘and. Fifty-eighth' street to West One Hundred and Sixty-fifth street.

On.February 15, 1906, Mulqueen & Mulqueen filed their written notice of appearance as attorneys for Henry F. Albers, owner of lot 10, block 2136, that lot being the premises above referred to. On March 26, 1906, Albers wrote to Mulqueen & Mulqueen as follows: In the matter of the claim of H. F. Albers against the City of Hew York. I hereby revoke the authority given, you in and by a certain paper dated Mew York, June 5, 1903, a copy of which is hereto annexed, and you will take no further steps or do any act thereunder.” The order appointing commissioners of estimate and assessment was made on April 18, 1906. On the same day the Albers Realty Company, by H. F. Albers, its president, retained Benjamin L. Blauvelt to obtain as large an award as possible for its property and authorized him to represent its interests before all proper • authorities, and agreed to pay Mm for his services ten per cent of whatever award might be obtained. Thereafter Mr. Blauvelt put in the proofs and represented this property before the commissioners.

On July 16,1906, the Albers Realty Company assigned to the Local Realty Company all of its right, title and interest to any award made in the proceeding for any of its land taken in the improvement. The proceedings before the commissioners took their due course, and the final report was filed and confirmed December 31, 1907. An award was made to the Albers Realty Company for land and improvements, $67,394, subject to an assignment dated July 16, 1906, made by the Albers Realty Company to the Local Realty Company, of all right, title and interest of the Albers Realty Company in and to said award, subject to a mortgage for the sum of $45,000 made by Henry F. Albers to Thomas J. Simonson, dated July 2, 1902, and recorded the same day.

On February 5, 1908, Mulqueen & Mulqueen filed a notice of lien against said award for ten per cent thereof based upon the written retainer, whereupon this proceeding was brought to cancel said notice of lien. The Special Term has granted that application and from the order entered thereon this appeal is taken.

The appellants base their claim upon the proposition which is stated in Sutherland on Damages (Vol. 3 [3d ed.], p. 2042): “On the client’s breach of a special contract for legal services, he is liable for the amount he has agreed to pay subject to such abatement as would in the natural course of things have been incurred in the way of expense by the attorney, if he had been permitted to perform his agreement,” and rely upon the following cases in this State : Marsh v. Holbrook (3 Abb. Ct. App. Dec. 176); Lawson v. Bachman (81 N. Y. 616); Matter of Grapel v. Hodges (112 id. 419); Matter of Bobbins (189 id. 422); Carlisle v. Barnes, No. 1 (102 App. Div. 573).

In the Carlisle case plaintiff sued for damages for breach of contract. Mr. Justice Patterson said: “ It is further alleged that * * * the defendant employed the plaintiff as his attorney and counsel to institute and prosecute in the United States and State courts, or before the executive departments of the United States government, such proceedings as might in the plaintiff’s judgment be necessary to collect the claims of the defendant’s constituents for and on account of the exaction of the customs duties referred to; * * * that * * * [defendant] would pay to the [plaintiff] for services rendered an d to be rendered in connection with the said claims as soon as lie, the defendant, should he paid the amount to which he was entitled under the terms of his agreement with his constituents, a fee equal to live per cent of the amount which might * * * be allowed to such constituents. * * * An allegation is then made of the breach of the. contract by the defendant in that he failed and neg lected to put the plaintiff in possession of any accounts or other evidence of said claims, or to furnish the individual names of the members of said firms to enable the plaintiff to institute any suit or suits, or proceedings at law or otherwise in the courts or before the departments, and the defendant thereby wholly prevented the further performance of the aforesaid agreement by the plaintiff. * * * The breach of the contract is clear. The refusal to give the plaintiff the data required so that he might perform his service is admitted. He could not proceed without them. There is some suggestion of inequity in the plaintiff’s claim, because it is said he did nothing. This action is not on a quantum meruit. The plaintiff was not required, to prove what work he actually performed. There-was a special contract and a breach, and the action is for a specific amount of damage, for an agreed sum, resulting' from that breach. As this action is constituted, proof was not required such as would be necessary in an action on a qua/ntum meruit. * * * Here there was an executory contract and a palpable breach and the plaintiff is entitled to recover the fixed value of his contract which was the five per cent agreed upon. * * * If the defendant chose to displace the plaintiff and employ some one else, thereby committing a breach of the contract, he was bound to pay the latter the sum he had agreed to pay, because that was the value of the contract to the plaintiff. (Bartlett v. O. F. Savings Bank, 19 Cal. 221.) * * * The plaintiff is entitled to recover his five per cent whether that amount is to be called strictly ‘ compensation ’ or the ‘ value of the contract ’ or ‘ profit.’ ( Wakemam, v. Wheeler & Wilson Mfg. Co., 101 N. Y. 205.) ”

Of course there is a line of cases of which Tenney v. Berger. (93 N. Y. 524) is an instance, where the court said: While the attorney is thus bound to entire performance and the contract as to him is treated as an entire contract, it is a singular feature of the law that it should not be treated as an entire contract upon the other side; for it is held that a client may discharge his attorney, arbitrarily, without any cause at any time, and be liable to pay him only for the services which he has rendered up to the time of his discharge.”

The cases cited to support that doctrine come, I think, under two classes: Firsts where there has been a general retainer; or, second, where the attorney has discharged himself or been discharged for cause. However that may be; the. cases first above cited treat a specific contract between attorney and client upon the principle applied to other contracts for services, and hold that upon a breach by the employer the measure of the damages is the value of the contract. But the cases cited were cases where the attorney had brought an action for damages for the breach of his contract. The present proceeding has to do with the enforcement of an attorney’s lien.

Section 66 of the Code of Civil Procedure (as amd. by Laws of 1899, chap. 61; now Judiciary Law [Consol. Laws, chap. 30; Laws of 1909, chap. 35], § 475) provides that “from the commencement of an action or special proceeding, •* * * the attorney who appears for a party has a lien upon his client’s cause of action, claim * * * which attaches to a verdict, report, decision, judgment or final order in his client’s favor, and the proceeds thereof in [whosesoever] whosoever hands they may come.”

In Matter of City of New York (East 178th Street) (107 App. Div. 22) this court said: It is the service of the application for the appointment of commissioners of estimate and assessment that is the commencement of the proceeding. Prior to that time the property was not in any wise affected.”

That daté in the case at bar was February 13, 1906, and upon that date the title to the land involved and for which an award has been made had passed out of Henry F. Albers into the Albers Realty Company by a deed dated February 10, 1905, and recorded February 18, 1905.

As the appellants had no retainer or contract with the Albers Realty Company, the owner of the property at the time of the commencement of. the proceedings, and the party' entitled to the award upon which the lien is sought to be impressed, they had no lien which ever attached. Their remedy, if any, is by action against their client for breach of contract. It cannot be established in this proceeding.

The order appealed from should, therefore, be affirmed, with ten dollars costs and disbursements to the respondent.

Ingraham, P. J., McLaughlin, Laughlin and Scott, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements to resjiondent.  