
    HAIGHT a. HOLCOMB.
    
      Supreme Court, Third District;
    
    
      General Term, March, 1858.
    
    Attorney’s Lien for Costs.
    The attorney has, under the Code, a lien upon the judgment for his services and disbursements, to the amount taxed therefor in the judgment roll, and no more.
    
    Motion to set aside an execution, and stay all proceedings on the judgment.
    The plaintiff recovered judgment in this action, arid thereupon agreed with the defendant to take his note in settlement. The plaintiff’s attorney then gave notice to the defendant that he claimed a lien upon the judgment for his services and disbursements, to the sum of $250, and that the note would not be received, but the judgment collected in full. He at the same time issued execution upon it.
    After both parties had notice of this claim of the plaintiff’s attorney they renewed their agreement respecting the settlement, the plaintiff claiming that he had a good defence to any claim of the attorney for costs and fees in the action, and the plaintiff directed the sheriff to withdraw the execution on payment of his fees.
    The sheriff refused to return the execution without first collecting upon it the sum of $250, claimed by the attorney.
    The defendant now moved to set aside the execution, or to stay all further proceedings thereon. The affidavits on behalf of the motion denied that the plaintiff was indebted to the attorney in any sum; the opposing affidavits claimed that he was, in the sum named. The amount taxed in his favor, as appeared by the judgment roll, was $120.28.
    It was held, at special term, that the attorney was entitled to a lien, and a reference was ordered, to ascertain the amount due him.
    The following opinion was rendered:
    Habéis, J.—The settlement, upon which the defendant now relies to defeat the execution, was made on the 28th of August. He had before that had notice of the lien claimed by the attorney. If, therefore, the attorney had a lien upon the judgment for his services, the defendant is not in a situation to claim protection on the ground that when he made the settlement he was ignorant of such claim.
    It was a well-settled doctrine, before the Code, that although costs were in form recovered by the prevailing party, and became a part of the judgment in his favor, yet the attorney was to be regarded as an equitable assignee to the extent of his costs, and his rights as such assignee would be protected. (See Williams a. Batterman, 4 Barb., 47, and cases cited.)
    Bor can I perceive that the doctrine has been changed by the Code. A reference to the first title of the chapter of the Revised Statutes, relating- to costs (2 Rev. Stats., 612), will show that costs, under the former system of proceedings, were always recovered as they are now, by the prevailing party in the action. The third title of the same chapter prescribed the fees of various officers of the court, including, among others, attorneys and counsellors. These fees, upon taxation, became a part of the costs recovered by the party. So now, certain allowances are made to the prevailing party, which are called costs. The rates of these allowances have been changed, but, as before, they are recovered by the party, and become a part of his judgment. The great change which the Code effected, in this respect, was the repeal of all statutes fixing the compensation of attorneys, solicitors, and counsellors, and leaving the amount open to contract between the parties in each particular case. The fee bill is no longer a criterion by which the amount to which the attorney is entitled can be determined.
    He is now entitled to receive, not the sum which, has been allowed to his client for .costs, but such sum as he has agreed to receive, or, in the absence of an express agreement, such sum as his services are worth.
    But in all this I can see no reason why the attorney should not have the benefit of the former doctrine,—that he is to be regarded as the equitable assignee of the judgment, to the extent of his cla/imfor services. The mode in which the extent of his services is ascertained is changed, but the grounds upon which the courts act in protecting that interest are unchanged. (See Sherwood a. The Buffalo and New York City Railroad Company, 12 How., 136; Sweet a. Bartlett, 4 Sandf, 661; Ward a. Wordsworth, 9 How., 16 ; 1 E. D. Smith, 598.) In the latter case, the question directly before the court was, whether the lien of the attorney for his services had been abolished by the Code ? The whole subject has received at the hands of Judge Daly a more complete and thorough examination than I have met elsewhere. The opinion itself is a fine specimen of juridical learning and sound argument. “ All that the Code has done,” says the learned judge, “ has been to abolish the fee bill, and take away all restraints upon attorneys making agreements with their clients for their services. It has left the attorney to agree with his client for a greater or less sum than is given to the party, by way of indemnity for his expenses; but I cannot see how this legislation can be regarded a's abolishing or affecting the attorney’s lien. He did not derive it from these statutes. It existed long before any fee. bill was enacted. ■ The right to a lien for services rendered is one thing, and the measure by which the value of these services is ascertained, is another. The latter has been the subject of statutory enactment, the former has not. The statute has not interfered with the right of lien, except to limit the extent of it; and when that limitation is removed by the repeal of all statutes regulating the fees of attorneys, the right of lien, upon the authority of adjudged cases, stands precisely as it stood before.”
    
      My conclusion in this case is, that Mr. Olney is entitled to a lien upon the judgment for the amount due him for services rendered in the prosecution of the suit, whether as attorney or counsel, and that notwithstanding the settlement between the parties, as the equitable assignee of the judgment to the extent of the amount due him, has a right to enforce payment by execution.
    Before making a final order upon the motion, and for the purpose of ascertaining the amount justly due to the attorney for his services as attorney and counsel in the action, I shall direct a reference to inquire and report upon that fact. An order will be entered, appointing Rufus H. King, Esq., a referee for that purpose, and directing that the further hearing of the motion stand over until the coining in of the report.
    The plaintiff refused to appear before the referee to submit the question, and the defendant appealed from the order of the special term to the general term.
    
      B. A. Givens, for the appellant.
    
      D. K. Olney, for the respondent.
    
      
       Wood v. The Trustees of the Northwest Presbyterian Church.—New York Common Pleas; At Chambers, May, 1858.
      Motion to vacate judgment, and to dismiss the complaint, on the ground that the case had been settled by the parties, before the judgment was entered.
      It appeared that the plaintiff in person, without the consent of his counsel, had given to the defendants a receipt in full of his claim the day before the trial. The defendants did not appear on the trial, and the plaintiff’s attorney knowing of the settlement, entered judgment against them by default, and issued execution thereon for seventy-seven dollars, his taxable costs in the suit.
      The defendants now moved to set aside the judgment and dismiss the complaint.
      
        Wm. L. Tidball, for the motion.
      
        Wm. W. Badger, opposed.
      Hilton, X, Held, That the judgment was regular, and the complaint could not be dismissed, but that the judgment might be opened as matter of favor, to allow the defendants to try the case if they desired.
      That on such trial the defendants could not prove a settlement without filing a supplemental answer setting it up, and the Court would only allow such an answ er for such a purpose to be filed on payment of all costs of the suit up to that time.
    
   By the Court.—Gould, J.

—I am fully of opinion, that the order of the special term is right, in so far as it gives the attorney a lien (beyond the power of his client to release), on the judgment he has recovered; the Code not having done away with the right which existed prior to its enactment.

There seems to me, however, a much more serious question involved, where the extent or amount of the lien is to be ascertained. At the special term, it was held, that as the judgment debtor had (before settling with the plaintiff) notice that the attorney of the plaintiff claimed a lien on the judgment to the amount of $250, for his services in obtaining the judgment, he, the debtor, was bound thereby to that amount, and could not so settle with the plaintiff, as to protect himself from paying that sum on the execution, for the benefit of the attorney. At the same time the entire amount of costs contained in the judgment, including $40 of extra allowance, was $120.28.

The plaintiff in the judgment on the other hand, claimed that as between him and his attorney, there' was nothing due. And to arrive at a decision at the special term, it was necessary to order an interlocutory reference, to ascertain what, as between the plaintiff and his attorney, was due for services in this cause. And it appears that on the reference, the plaintiff refused to appear, denying the authority of the court to refer, without his consent, a controversy between him and his attorney, for the trial of which he had a right to a jury. I am unable to see why this position of the plaintiff is not sound; as the defendant (and not the plaintiff) made the motion to set aside the execution, because the judgment was settled. And if this position be sound, it seems to me to lead us directly to the correct solution of the whole difficulty.

The allowance made by the Code is a substitute for, and in strict analogy to the costs of the old fee bill, and the amount of such allowance is patent on the judgment, as an item separate from Oao plaintiff's damages. To this limit, the attorney has, on the judgment roll itself, prima facie claim, of which all parties have legal notice; and in any settlement with the party, the defendant settles those costs at Ms peril. But an agreement as to amount of compensation, made between attorney and client' under the Code, is utterly indefinite, as well as confined to their own knowledge, and may as well extend to three quarters of the whole judgment, as to any other amount. And should there be a dispute between the attorney and his client, as to what the agreement, and to what amount it extended, I know of no short remedy to which an attorney is entitled, by which to avoid settling that dispute in. the usual way, and by the usual tribunals. While, since the tenor and extent of this agreement can never appear on the record, no party can ever be safe (in settling a judgment) against a claim of an attorney, however exorbitant or unlikely it may appear, but he must abide the due course of an execution, which will necessarily be collected long before the plaintiff and his attorney can have their differences decided.

It therefore seems to me, that while the attorney’s lien should be maintained under as well as before the Code, it should now, as then, be restricted to what appears as costs on the roll; and I would so modify the order of the special term. 
      
       Present, Weight, Gould, and Hogeboom, JJ.
     