
    Christian C. Horn, Appellant, v. George P. Horn and Others, Defendants. Henry F. Lippold and Maximilian Morgenthau, Jr. as Receiver, etc., Respondents.
    First Department,
    November 5, 1906.
    Partition — discontinuance of action — receiver’s compensation — when defendant’s attorney not entitled to lien.
    On the settlement of an action for partition, in which a receiver of the rents and 'profits has been appointed, who is also a receiver of said rents in a prior action still pending, the court on a motion for discontinuance can only vacate the order appointing the receiver in the partition action, and should leave the parties to apply for an accounting by the receiver in the action in which he .was first appointed on which application the amount of his compensation can be determined.
    The attorney for a defendant doweress in an action for partition, who has served -no answer before a settlement of the action, is not entitled to an attorney’s lien upon the property involved, but is merely entitled to his taxable costs, oil the payment of which the discontinuance should be conditioned.
    Appeal by the plaintiff, Christian C. Horn, from so much of an order of the Supreme Court, made at the Hew York Special Term bearing date the 24th day of July, 1906, and entered in the office of the clerk of the county of Hew York as directs a discontinuance of this action upon certain conditions.
    
      Benno Loewy, for the appellant.
    Henry. F. Lippold, respondent, in person.
    
      Charles A. Riegelman, for the receiver.
   Ingraham, J.:

. This action was-brought for the partition of real property. The complaint was served on the defendant Amelia Essner, who appeared by an attorney. A receiver was appointed, to collect the rents and profits of the property in controversy. Before the defendant Amelia Essner had answered the parties settled the action, whereupon the plaintiff made a motion, on notice to the receiver and the attorney for the defendant Amelia Essner, to discontinue the action without costs in accordance with the terms of the agreement entered into by the parties interested in the property and that possession of the property be turned over by the receiver to the plaintiff. That motion coming on to be heard, the attorney for Amelia Essner appeared and insisted that he should be paid the compensation to which he.was entitled for the services he had rendered to the defendant, and the receiver appeared and asked that his fees should be provided for. The court thereupon made an order discontinuing the action without costs upon the eondition that the attorney for the defendant Amelia Essner be paid $750 or such sum as should be determined was the value of his services by a reference and that the receiver turn over the property on payment of his legal fees and disbursements. This order also contains a provision that “ pending the hearing and final determination of the proceedings upon such reference, if had, the said attorney shall have a lien for such services, upon the respective causes of action, forming the subject-matter of this action, and of the said action of Jissner v. Horn, and upon the agreement of 'settlement made herein between the plaintiff and the said defendants, bearing date'June 28, 1906.”

The plaintiff appeals from so much of the order as imposes these conditions for the discontinuance of the action.

The receiver was appointed receiver of the rents of the property, and to enable him to collect such rents he was entitled to its possession. Presumably he has in his possession the rents that he has collected, and the question as to wlia-t he was to do with these rents was not before the court. The amount of his compensation can be fixed in a proper proceeding when he accounts for the rents that he has collected. As he was entitled to the possession of the property only to enable him to collect the rents when the action was discontinued, and he was no longer entitled to Collect the rents, his right to the possession of the property terminated. It appeared, however, that he had been appointed receiver of these rents and profits in another action which, so far as appears, had not been discontinued. On this application all that the court can do is to vacate the order appointing him receiver in this action, leaving the parties to an application in the action in which he was first appointed receiver for an accounting for the rents that he had received and for the delivery of the possession of the property to the parties entitled to it. In relation to the claim of the attorney for Amelia Essner, who had appeared, but. had served .no answer, it is difficult to see upon what he could have had a lien for the services that he had rendered to his client. It was never disputed but that his client had a right of dower in- the property, and the plaintiff’s claim' was that she was only entitled to such an interflt. Ho answer was served and no counterclaim interposed, and there was nothing, therefore, tó which a lien could attach.under section 66 of the Code of Civil Procedure. •The court was not justified in imposing a lien upon the property to which the action related, or to any interest or right that any of the parties had therein, except his client, and if his client had merely a right of dower, that right has terminated by her death. So far as I can see, all that this attorney was entitled to in this action was the costs of the action to be taxed. He was entitled to these costs, as the parties, including his client, could riot settle the action so as to affect', his right to. receive the costs to which he was entitled upon the discontinuance.of the action.

1 think the order appealed from, should be reversed, with ten ■ dollars costs and disbursements to be paid by the attorney personally, and an order granted discontinuing the action upon payment to the attorney who appeared for Amelia Essner-, his costs and disbursements to be taxed, and 'vacating the order appointing the receiver of the rents- and profits.

O’Brien, P. J., Laughlin, Clarke and Scott, JJ., concurred.

' Order reversed, with ten dollars costs and disbursements to be paid by. attorney, personally, and an order granted discontinuing the action on payment to the attorney who appeared for Amelia Essner,' his costs and -disbursements to be taxed, and vacating the order appointing receiver -of the rents and profits.'  