
    Casucci v. Alleghany & K. R. Co.
    
      (Supreme Court, General Term, Fifth Department.
    
    October 21, 1892.)
    Attorney’s Lien—Defendant’s Liability—How Established.
    In an action for personal injuries, against a railroad company, it appeared that plaintiff's attorney had a lien on the claim for damages for one third of any amount for which defendant should settle the action; that, after issue was joined, plaintiff released all claims for damages against defendant on the payment by it of a certain sum; and that the settlement was so far set aside as to permit the attorney to prosecute the action, and recover the amount of his lien. Held, that the attorney was not entitled to recover without establishing the liability of defendant on the issues joined, since compromising the claim was not an admission by defendant of its liability.
    Appeal from circuit court, Brie county.
    Action by Michele Casucci against the Alleghany & Kinzua Railroad Company for personal injuries. After issue was joined, plaintiff and defendant settled the action, and plaintiff’s attorney continued the prosecution of the case in the name of the plaintiff, to recover the amount of an alleged lien on the claim for damages for his services. Prom a judgment for defendant, plaintiff appeals. Affirmed.
    Argued before Dwight, P. J., and Macomber and Lewis, JJ.
    
      Henry H. Seymour, for appellant. Charles S. Cary, for respondent.
   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 (he recovery, clone 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 tile defendant, and probably, under section 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 to 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, (Sup.) 4 N. Y. Supp. 580, 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, procured 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 j udge was correct in nonsuiting 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. All concur.  