
    Francisco Drago, Plaintiff, v. Southern Boulevard Railroad Company, Defendant.
    Supreme Court, Special Term, New York County,
    June 19, 1943.
    
      Angelo E. Nigro for plaintiff.
    No appearance for defendant or others.
   Eder, J.

This action was settled during trial, and the present application is made to fix the fees of the attorneys heretofore retained by the plaintiff, and the movant’s position is that this may be done pursuant to section 29 of the Workmen’s Compensation Law, and that thereupon the lien of the compensation carrier may also be fixed and ordered paid.

Section 29 does not vest this court with the power, claimed. It is entitled Remedies of employees: subrogation. Among the many features to which it relates is protection to the State Insurance Fund, if compensation is payable therefrom, and otherwise the person, association, corporation or insurance carrier liable for the payment of such compensation, to the extent that they pay the same and expenses for medical treatment. In case of an action brought by the injured employee, or, in case of death, his dependents, the State Insurance Fund, or such other named persons or carrier is given a lien on the proceeds of any recovery, whether by judgment, settlement or otherwise, after the deduction of the reasonable and necessary expenditures, including attorney’s fees, incurred in effecting such recovery, to the extent of the total amount of compensation awarded and to such extent such recovery is deemed for the benefit of such fund, person or carrier.

This is a statute designed and enacted to protect a particular class, other than attorneys, and I do not see that it in any way confers jurisdiction on this court to grant the relief sought by this application; indeed, such a construction would conflict with section 475 of the Judiciary Law, which is, as far as I am aware, the only appropriate provision to invoke, for therein it is expressly provided that<£ The court upon the petition of the client or attorney may determine and enforce the lien ”. (Italics supplied.)

The application is denied, without prejudice to apply as herein suggested, or in such other manner as the parties in interest may deem appropriate to invoke. I think it advisable to suggest that any application be accompanied by an affidavit showing that any party defaulting is not in the military service of the nation.  