
    Louis Wendel, Jr., and Robert J. Robeson, Appellants, v. George F. Binninger, Individually and as General Guardian of Ida Binninger and Others, Infants, and Others, Respondents, Impleaded with Regina Smith, Appellant, and Christopher Binninger and Margaret Ruhs.
    First Department,
    June 11, 1909.
    Attorney and client — condemnation proceedings — lien on award — debtor and creditor—judgment against estate of testatrix— rights of creditors as against devisees — costs — when single bill of costs will be divided.
    Where the devisees of certain lands upon which there were incumbrances which they were under no personal hligation to pay, agreed to give their attorneys, • in a condemnation proceeding, ten per cent of the award as compensation for services, the attorneys have a lien on the award only to the extent of ten per cent of the surplus after payment .of the incumbrances.
    It is only where the rights of parties are incident to and dependent upon the land taken in condemnation proceedings that the award is deemed to partake of the nature of realty and where no such equitable consideration exists an award is merely personal property.
    Where property devised by a testatrix is taken in condemnation proceedings, the executors of an unsecured creditor of the testatrix who obtained judgment on their claim after the debtor’s death, but have made no attempt within the statutory "period to sell, her real property to. satisfy their judgment, have no lien either legal or equitable on the award for the amount of their judgment.
    Their remedy is an action against the devisees of the property to Charge them -under sections. 1837-1860 of the. Code .of Civil Procedure..
    Where, upon. the. trial the executors of the..decease'd creditor contested the . right of. the .attorneys in the. condemnation proceedings to a lien on .the award superior to their own and a judgment was .entered in their favor, of which the attorneys in the condemnation proceedings and’ one of the infant devisees secured a reversal on appeal, but one bill of .costs- Under the circumstances ! presented will be awarded- to- be- divided between the two appellants..'
    Appeal by the plaintiffs, Louis Wendel, Jr., and another, and by the defendant, Regina Smith, from a judgment of the Supreme O’ourt, entered! in the office of the clerk of"the county of Blew York on the 18thi day of April, 1905, upon the.decision of the court rendered after a trial at the Bew York Special Term.
    
      Louis Wendel, Jr., for the plaintiffs, appellants.
    
      E. J. Dunphy, for the appellant Regina Smith.
    
      Henry C. Henderson, for the respondents.
   Houghton, J.:

Lizetta Binninger died in January, 1900, seized of certain real property, which, by her last will and. ‘testament, she devised to- her children, Ida, Lillie and Regina, who were then infants, and of whom, George F. Binninger, was subsequently appointed; general guardian.

Prior to the decease of the testatrix the city of Bew York had begun condemnation proceedings for the opening of the White Plains, mad, and the .property-’devised was a part of the property taken in those proceedings.. The real property which passed to the devisees, was incumbered by mortgages and hack taxes, In April, 1901, the general guardian of the infant devisees retained plaintiffs to appear as. attorneys- in sue!/ proceedings in behalf of his wards, and entered-into an agreement in writing with them to pay for their services “a sum equal to ten per cent of whatever siim shall be awarded,, allowed, recovered or confirmed on account of said loss and. damage.’’.for the taking of such property, and assigned tp plaintiffs such proportion of any award that might be made. Title to the lands taken Vested in the city November 15; 1900, and on November 11, 1902, the court confirmed an award of $8,408.63 therefor, and subsequently directed that out of this sum the incumbrances and back taxes against the property be paid, and after such payment there remained a surplus of $1,989.31, which,, with interest, was subsequently directed: to bé paid into court subject to the rights of any party. The- disposition of this surplus forms the subject of the present controversy.

Plaintiffs brought this action- to establish a lien in their behalf on this fund to the extent of ten per cent of the total award of $8,408.63. The defendants claim that plaintiffs are entitled only to ten per cent on the surplus. The respondents George H. Lawrence and others, as executors of Elizabeth Hyland Sias, deceased, creditors of the testatrix, were made parties defendant. Prior to her death the testatrix became indebted to Mrs. Sias in the sum of $1,500, which indebtedness was not a lien on the real property taken in the condemnation proceedings. The respondent executors brought action against the executors of Mrs. Binninger and secured judgment on their claim, but made no attempt during the three years after the issuing of letters-testamentary on her death'to sell her real property for the purpose of paying debts-. The respondent executors, however,. did bring, an action the purpose of which was to have the judgment which they had obtained against Mrs. Binninger’s executors declared a lien on the award made to her devisees and they obtained a decree to that effect which this court reversed! (Lawrence v. Grout, 112 App. Div. 241), and no determination on the new trial ordered has been had. In- the present action the defendants Lawrence and others as executors pleaded substantially the same facts and asked the same relief that they demanded in their action of Lawrence v. Grout, and the judgment appealed from determines that they have a lien on the award superior to that of the plaintiffs and directs that their claim be first paid and the'balance applied to that of the plaintiffs.

This disposition of the fund was erroneous. The plaintiffs as attorneys had a- lien- on the fund created by the special proceeding which they instituted for their clients (Code Civ. Proc. § 66),, and the respondent executors had no lien at all. The plaintiffs, howiver, were entitled to a lien only to the extent of ten per cent on the $1,989.31* . The devisees were not personally liable to pay the incumbrances on the property which canté to them through the will of their testatrix. They were interested in the property devised only to the extent of the surplus over incumbrances. The agreement which the plaintiffs had with them is-almost identical with that in Deering v. Schreyer (171 N. Y. 451), in which it was held tha-t an agreement entered into by an owner of real property upon which there were incumbrances which he was under no personal obligation to pay, to give an attorney fifty per cent of such award as might be made, as compensation for his services in condemnation proceedings, entitled the attorney to only fifty per cent of the surplus above incumbrances and not to fifty per cent of the; total award.

The respondents Lawrence and others as executors on the other hand have no cause of action for the establishing of a lien to the extent of their claim on the award. This question was practically decided in Lawrence v. Grout (supra). Although the bond which Mrs. Sias held and which constituted the claim against Mrs, Binninger, at the time of her death, was originally accompanied by a mortgage ■ that mortgage did not cover the property which was taken in the condemnation proceedings. . The claim, therefore, was neither legally -nor equitably a lien ©n the award. The amount due on the bond was a bare indebtedness without security.

It is only where the rights and interests of parties are incident to and dependent upon the land taken in condemnation proceedings that the award is deemed to partake of the nature of realty and to take the place of the land itself.' (Utter v. Richmond, 112 N. Y. 610 ; Matter of City of Rochester, 110 id. 159.) "Where no equitable consideration, of such a character exists an award is a mere claim and is personal property only. ( Van Loan v. City of New York, 105 App. Div. 572; Matter of Seventh Ave., 59 id. 175, 177.)

The rights of a general creditor against the next of kin, legatees, heirs or devisees of his debtor are defined by the Code and the procedure against them is plainly prescribed and easily followed. (Code Civ. Proc. §§ 1837-1860.) Under the. conditions therein set forth he can obtain judgment against them on his debt to the extent of the property which came to their hands. If the property is real estate and still in the hands of the devisee or heir it may bé collected out of such real property; but if he has disposed of the property or if the action is against the legatee or next of kin, to whom money lias been paid or distributed, necessarily the judgment must be a personal one. The surplus of the award after paying plaintiff’s lien is personalty and belongs to the children of Mrs. Binninger. The executors of Mrs. Sias can obtain, if they show the proper facts, a judgment against the devisees to the extent of the property of their mother which has come to their hands. When they do obtain such a judgment they must collect it in the regular way as a personal claim. ■ They did not see fit to enforce the lien which they had during the three years from the issuing of letters testamentary upon Mrs. Binninger’s estate. The character of the real property was changed into personalty by the award and there is no equitable consideration which authorizes the court to treat the award as realty.

Although on the argument of this appeal the respondents Lawrence and others practically conceded that the plaintiffs should be paid their ten per cent on the surplus, their attitude on the trial was to the contrary and it was necessary for the plaintiffs to take this appeal to protect their rights. The appellant Smith also succeeded. We think, however, that there should be but one bill of costs against the respondents to be divided between the two appellants.

The judgment must be reversed and a new trial ordered, with one bill of costs to abide the event, to the two appellants against the respondents Lawrence and others as executors.

Ingraham, McLaughlin, Laughlin and Scott, JJ., concurred.

Judgment reversed, new trial ordered, with one bill of costs to appellants against respondents Lawrence and others as executors to abide event.  