
    Michele Casucci, App’lt, v. The Allegany & Kinzua Railroad Company, Resp’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 21, 1892.)
    
    Attorneys—Lien on cause of action—Prosecution for. .
    In an action brought to recover for personal injuries sustained by the plaintiff by reason of the negligence of the defendant in operating its train of cars, a settlement was effected between plaintiff and defendant by which the former released all claim for damages on payment of $250. Plaintiff’s attorney had a contract with his client by which, as part compensation for his services, he was to receive one-third of the recovery or settlement. The settlement male was, on motion of plaintiff’s attorney, so far set aside as to allow him to prosecute the action to recover the amount of his lien. Upon the trial plaintiffs’ attorney asserted that by showing the settlement he had a right to recover in plaintiff’s name,but for his benefit, one-third of the. amount of the settlement without entering into the merits of the controversy. Held, that this position was .untenable.
    Appeal by the plaintiff, Michele Casucci, from a judgment entered in Erie county February 13, 1892, dismissing his complaint •upon a nonsuit directed at the Erie circuit.
    
      Henry H. Seymour, for app’lt; Charles S. Cary, for resp’t.
   Macomber, J.

This action was brought to recover for personal injuries sustained by the plaintiff by reason of the negligence of the defendant in operating its train of cars on the 29th ■day of November, 1890.

After issue was joined a settlement was effected between the plaintiff and defendant by which the plaintiff released all claim for damages on the payment by the defendant of the sum of $250. It appears, however, that the plaintiff’s attorney had a contract with his client by which, as a part of the compensation for his services, he was to receive one-third of the amount of the recovery, or one-third of any amount for which the defendant should settle the action. No notice of this lien appears to have been given by the plaintiff’s attorney to the defendant, and-probably under § 66 of the Code of Civil Procedure no .such notice was necessary.

The settlement above mentioned was, upon motion of the plaintiff’s attorney, made in his own behalf, so far set aside as to permit the prosecution of the action and to enable the attorney tó recover the amount of his lien as compensation for professional services.

Upon the trial the learned counsel for the appellant assumed the position that by showing a settlement between the plaintiff and the defendant for the sum of $250 he, the attorney, had a right to recover in this action in the name of the plaintiff, but for the benefit of the attorney, one-third of that amount, without -entering upon the merits of the questions presented by the pleadings, which put in issue every question raised by the plaintiff, save only that the cars of the defendant at the time stated were in fact derailed. The assertion that the plaintiff himself was a passenger on that occasion was denied; the facts of his injuries were denied, and the affirmative defense that whatever injuries he received were caused by his own carelessness, was asserted in the answer. So far as we are aware, this contention made by the learned counsel in his own behalf presents such a case as has not been passed upon by the courts of this state. The case of Keeler v. Keeler, 51 Hun, 506; 21 St. Rep., 666, cited by him, falls far short of holding any such rule to exist We are unable to hold under this section of the Code, that in case of a settlement by a defendant with the plaintiff in a negligence case, the plaintiff’s lien may be thus easily worked out. Such, we think, could not have been the view of the counsel when he made the motion at special term to set aside the settlement as being made in violation ■of his lien, when he was permitted by the order of the court, pro■cured on such motion, so far to open such settlement as to permit 'him to prosecute the case for the recovery of his lien. To hold ■otherwise would be tantamount to deciding that the defendant in such an action could not safely compromise or settle a claim for personal injuries caused through its alleged negligence, without being conclusively held to have admitted its legal liability. But -compromises and settlements of actions never proceed upon any .such hypothesis. Common experience shows that parties may often deem it for their best interests, without acknowledging liability, to pay something rather than to litigate a contested claim.

In any view that we may regard this case, we think that the trial judge was correct in non-suiting the plaintiff upon the trial, in the absence of any evidence charging the defendant with liability for the injuries sustained by the plaintiff.

Judgment appealed from affirmed.

Dwight, P. J., and Lewis, J., concur.  