
    Gustav Bloch, Respondent, v. Morris Bloch, Appellant.
    Second Department,
    March 4, 1910.
    Attorney and client — attorney’s lien — enforcing lien by execution — practice — when judgment cannot be attacked — appeal — order entered on appellant’s motion.
    Ah attorney issuing execution to enforce his lien on a judgment should restrict the execution to the amount of the lien.
    An affirmance of a judgment by the Appellate Division necessarily determines that it was properly obtained and it cannot be attacked on a motion to set aside an execution thereon in aid of an attorney’s lien.
    
      Motion to set aside an execution to enforce an attorney’s lien remitted to the Special Term with direction to ascertain the lien and reduce the amount of the execution to the amount of the lien.
    The Appellate Division will entertain an appeal from an order in form entered on the appellant’s motion, if in fact it was not so entered.
    Appeal by the defendant, Morris Bloch, from so .much of an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the -28th day of October, 1909, as denies the application of the defendant to set aside the execution issued upon the judgment herein.
    
      Samuel J. Goldsmith [Gordon 8. P. Kleeberg with him on the brief], for the appellant.
    
      Francis A. McGlosJcey, for the respondent.
   Carr, J. :

This is an appeal from an order made at. Special Term denying a motion to vacate an execution. It appears that after this action was at issue, an order of discontinuance was entered. The plaintiff’s attorney, on the claim that the order of discontinuance was entered collusively for the purpose of depriving him of his lien, procured an order, on motion, vacating the order of discontinuance. No appeal was taken from the order of vacation. The plaintiff’s attorney thereupon proceeded to bring the action on for trial to enforce his lien, and secured a verdict for the plaintiff for the sum of $700.75 on the cause of action set forth in the complaint. This judgment was affirmed on appeal by this court. (Bloch v. Bloch, 131 App. Div. 859.)

The plaintiff’s attorney thereafter issued execution against the defendant and a levy was made. The defendant moved to set aside the execution on the grounds that the plaintiff had not authorized its issuance, and' that a satisfaction piece of the judgment had been delivered by the plaintiff to the defendant before it was issued. The real parties to this present controversy are, therefore, the plaintiff’s attorney and the defendant. That the plaintiff gave no direction for the issuance of an execution, but did, on the contrary, give a satisfaction piece to the defendant, and had no desire that execution should 'issue, is undisputed. The plaintiff’s- attorney rests his right to issue- the execution on the claim that it was in enforcement of his lien. It -nowhere appears in the record on this appeal what he claims as the amount of his Hen, and presumably its satisfaction will not absorb the whole amount of the judgment.

In Van Camp v. Searle (79 Hun, 134, 144) the amount claimed by the attorneys as their Hen was shown to be equal- td the .amount of the judgment, and. it was said : “They may He regarded as the-equitable assignees of the judgment. (Haight v. Holcomb, 16 How. Pr. 160.) And they had the right to make it available by process of execution to satisfy .their Hen charged upon it. (Code Civ. Proc. § 66; Martin v. Hawks, 15 Johns. 405 ; McGregor v. Comstock, 28 N. Y. 240 ; Goodrich v. McDonald, 112 id. 157.)”

Yet where there is no proof before the court as to the amount of the Hen, it can scarcely bé presumed that it equals or exceeds the amount of the. judgment. - If there be -any presumption, it should be to the contrary. .

In Crotty v. McKenzie (42 N. Y. Super. Ct. 192) it was held that where a satisfaction piece, given by the plaintiff himself, had been filed and the - judgment marked satisfied, thei ¡plaintiff’s attorney could not issue-an execution on the judgment Until the satisfaction. "'piece was-vacated, the court saying, in part: “An execution cannot be issued upon a judgment which lias, been satisfied by the filing of a certificate * '* ■*. If the satisfaction is! voidable for any. cause, it must He vacated by the court before execption can be issued. This has been expressly held by the general term of the court of common pleas, and is undoubtedly sound law (Ackerman v. Ackerman, 14 Abb. Pr. 229, and cases cited). The reason is that since the adoption 'of the Revised Statutes the satisfaction is. a part of the record, and operates to extinguish the judgment (Booth v. Farmers & Mechanics' Bank, 4 Lans. 307)."

In the case at bar it does not appear that the -alleged satisfaction piece was ever, filed and the judgment satisfied-of record, either before or after the execution was- issued. There is, .therefore, no-seeming necessity for a motion to vacate, as "the judgment is yet unsatisfied of record.

Assuming for. the moment the validity .of the - judgment- and a, right to issue execution on the part of the plaintiff’s attorney to enforce his lien, yet apparently the execution has been issued beyond the necessity and propriety of the occasion, as it should not have gone beyond the amount of the lien, if. there be any.

The appellant contends further that the execution is void, because an action to enforce an attorney’s lien cannot be maintained when the parties to an action have mutually settled their controversy; and that, in any event, the liability of the defendant is only that of a surety, and the plaintiff’s attorney cannot proceed against him until he has exhausted his remedy against his client or shows that the client is irresponsible. When this case came before this court on an appeal from the judgment, it was held that the then record did not present for decision any question as to the right to maintain the action. (Block v. Block, supra.) Our affirmance of the judgment is necessarily a determination that it was properly obtained, and we cannot now, at this stage, consider an objection ■ against the judgment which should have been raised directly before it was obtained. ■ It is true that there are cases declaring that a defendant may not be liable, primarily, for the amount of the attorney’s lien on the plaintiff’s cause of action, but in those cases there was a settlement in good faith between the parties, with the understanding that the plaintiff would look after his attorney’s rights, but even there, where the plaintiff failed to protect his attorney and was shown to be irresponsible, the lien was enforced against the defendant to the extent of the moneys paid in. settlement. (Fischer-Hansen v. Brooklyn Heights R. R. Co., 173 N. Y. 492; Morehouse v. Brooklyn Heights R. R. Co., 185 id. 520.)

In the case at bar the defendant asserts he has a satisfaction piece which indicates a. settlement between the parties, but there is nothing to show that any sum whatever was paid in settlement, and much' to indicate that, nothing was paid. Therefore, we have not before us a case in which there are any proceeds of settlement on the basis of which the lienor might proceed.

A proper disposition of this motion would have required the ' Special Term to ascertain first the amount of the attorney’s lien, if there be any, and so correct or reduce the amount specified in the execution that it should- cover the amount of the lien only. It appears from this record that the Special Term did attempt to so • proceed originally, but vacated its original order on the motion of the present appellant because of some irregularity in its entry The whole matter should be remitted to the Special Term to be disposed of in accordance with this opinion.

We have not overlooked the respondent’s objection that the pres^ ent. order is not appealable, inasmuch as from its recitals it may appear that it was entered upon the appellant’s motion, but we think that it is apparent that it was not entered in fact 'upon the appellant’s motion, and that substance should prevail over form, under the circumstances.

The order,.in so far as it is appealed from, is reversed, with ten dollars costs and disbursements, and the motion is remitted to the Special Term, to be disposed of in accordance with this opinion.

Jenks, Burr, Thomas and Rich, JJ., concurred.

Order, in so far as appealed from, reversed, with ten dollars costs and disbursements, and motion remitted to the Special Term for disposition in accordance with opinion.  