
    William H. Sullivan, Plaintiff, Impleaded with James F. Sullivan, Appellant, v. John McCann and Theodore Kauffeld, as Executors of and Trustees under the Last Will and Testament of John Sullivan, Deceased, Appellants, Impleaded with James Sullivan and Others. In the Matter of the Application of Edward W. Fox, Respondent, to Have His Lien Determined and Enforced.
    First Department,
    October 19, 1906.
    Attorney and client — when plaintiff’s attorney after discontinuance may not bring in defendant as party to proceeding to determine his lien.
    "When no money has been paid or. agreed to be. paid upon the discontinuance of an action against trustees for the construction of a will and an accounting, the plaintiff’s attorney in a proceeding for the enforcement and determination of his lien on the plaintiff’s cause of "action is not entitled to have the defendant trustees brought in or directed to pay the amount of'the lien, for on such discontinuance the defendants hold nothing to which the lien attaches and cannot be put. to the expense of litigating the controversy.
    
      It^eems, that after the attorney has established the amount due from his client he may present the claim against the estate in a proper, proceeding if his client is entitled to any money therefrom.
    Appeal by the plaintiff James F. Sullivan and by the defendants, John McCann and another, as executors and trustees, etc., from an order of the Supreme Court, made at the Hew' York Special Term and entered in the office of the clerk of the county of Hew York on the 27th day of June, 1906.
    
      Henry O. Eldert, attorney, for the appellant, James F. Sullivan.
    
      John F. McCann, Jr., attorney, for the appellants McCann and Kauffeld. ' .
    
      Louis Frankel of counsel [Job E. Hedges, attorney], for the respondent.
   Clarke, J. :

This is an appeal from an order of the Special Term appointing a.referee upon'the application of the petitioner, an attorney, to have the amount and extent of an attorney’s lien fixed and determined.

This matter was before .us on an appeal f rom an order discontinuing the action and is reported in Sullivan v. McCann (113 App. Div. 61; 98 N. Y. Supp. 947). We there held that the attorney had the right, under section 66 of the Code of Civil Procedure, to apply to the court for the purpose of fixing the amount of his compensation. We further said : “We think that inasmuch as it does not appear that any sum was paid or agreed to he paid in settlement, ynd as, therefore, the lien only attached to the claim or pause of fiction, so far as the defendants are concerned there is no lien to-be determined or enforced.”

The order appealed from provided as follows: “ Ordered, that the prayer of the said petitioner be granted and that it be referred to Edward B. La Fetra, Esquire, counselor at law, of the city of Mew York, to hear and determine the amount and extent of the lien of the said Edward W. Fox, as attorney for William H. Sullivan and James F. Sullivan, the above-named plaintiffs, as to fill the matters stated in the -petition herein, and to make such suitable provision as may be necessary for the enforcement of the said lien and directing the payment thereof by John McCann- and Theodore Kauffeld as executors and trustees of the last will and testament of John Sullivan, deceased, from any moneys, the property of the above-named plaintiffs, in their hands now due or which may hereafter become due by reason of any causes of action existing in' favor of the above-named plaintiffs against the said defendants trustees at the time of the commencement of- the above-entitled action.”

So much of said order as provides for the bringing in of the trustees as parties to said reference, and as authorizes any provision to be made for the enforcement of the alleged lien, or directing the payment thereof by said trustees, is improper. We distinctly held that as it appeared that no moneys had been paid or agreed to be paid upon the discontinuance of the said action without the knowledge* or consent of the attorney, so far as the trustees, the defendants ■ in the original action, were concerned there was nothing to which a lien could attach. They are, therefore, unnecessary and improper parties to this proceeding which is allowed solely for the purpose of fixing the amount of the attorney’s compensation under |iis contract and against his clients. 'Meither the trustees individually nor the estate in their hands should be put to the trouble and expense of litigating this controversy. After it shall have been established what amount, if any, is due from the plaintiffs to the attorney, then he will-be in a position to present his claim against the estate, and if there is any money of the plaintiffs now or hereafter in the hands of the trustees, he may, by appropriate proceedings, collect the same.

The order, therefore' should be modified by striking out so much thereof as affects the trustees, with ten dollars costs and disbursements to them, and as so modified affirmed.

O’Brien, P. J., Ingraham, Houghton and Scott, JJ., concurred.

Order modified as directed- in opinion, and as modified affirmed. Settle order on notice. '  