
    Robert Rochfort, Respondent, v. Metropolitan Street Railway Company, Appellant.
    
      Attorney and client — seitlement by the client of a suit in which the attorney has a contingent fee — the plaintiff’s attorney’s fee cannot be enforced, againstthe defendant by motion.
    
    The amendment in 1899 of section 66 of the Code of Civil Procedure, relating to an attorney’s lien for his compensation, by adding thereto the following provision: “ The court, upon the petition of the client or attorney, may determine and enforce the lien,” was designed to apply to a controversy between the plaintiff and Ms attorney, and not to a controversy between the plaintiff’s attorney and the defendant.
    Where an attorney institutes an action under an agreement with Ms client, by which he is to receive a contingent fee of one-half the amount recovered therein, and the defendant settles with the plaintiff, without the knowledge of the attorney, it is improper for the court, upon the petition of the attorney, to make an order requiring the defendant to pay the attorney a sum equal to one-half of the amount paid to the plaintiff; the order should simply provide that if the defendant did not pay such amount within a certain time the attorney should have leave to continue the action.
    Appeal by the defendant, the Metropolitan Street Railway Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 9th day of February, 1900, directing the defendant to pay to the plaintiffs attorney the sum of $130, his costs and lien herein on the amount of the settlement of this action between the parties.
    
      Charles F. Brown, for the appellant.
    
      Alfred C. Cowan, for the respondent.
   O’Brien, J.:

This proceeding was initiated by service on defendant of a petition and notice of motion, and was brought on for a hearing upon the pleadings and such petition. The action was brought to recover damages for personal injuries due, as alleged, to defendant’s negligence, and the petition shows that, by agreement between the plaintiff and his attorney, the latter was to be paid a contingent fee of one-half of the amount recovered; that the defendant settled with the plaintiff by paying him $260 without the knowledge of the attorney, and that the plaintiff is irresponsible. The defendant submitted no papers in opposition, but objected to the payment of any amount on such summary application. The learned judge at Special Term made an order that the defendant pay to the attorney $130 — which is one-half of the amount stated to have been received by the plaintiff in settlement — and from the order directing such payment this appeal is taken.

Section 66 of the Code of Civil Procedure relates to an attorney’s compensation, and provides that he shall have a lien upon his client’s cause of action which shall attach “ to a verdict, report, decision, judgment or final order in his client’s favor, and the proceeds thereof in whosesoever hands they may come; and the lien cannot he affected by any settlement between the parties.” In 1899 this section was amended by adding the following: The court, upon the petition of the client or attorney, may determine and enforce the lien.” The question presented, therefore, is one of practice, whether as against a defendant who settles with a plaintiff without the knowledge of his attorney, the latter can in a summary way, by petition, have the amount of his lien determined, or whether he must proceed to enforce it in or by an action.

Prior to the amendment of 1899 to section 66 of the Code, it is clear from a review of the authorities that the lien of an attorney, after a settlement by the client, could be enforced in the original action or by a separate action brought for that purpose, but not in a summary way by petition or motion. In Pilkington v. Brooklyn Heights R. R. Co. (49 App. Div. 22), wherein application was made upon affidavits for an order requiring the defendant to show cause why the amount of the attorney’s lien should not be fixed and the defendant directed to pay the same, it appeared that a settlement was made for $2,600, a release given and an agreement which provided that the defendant should adjust any claim for costs or for any lien upon the cause of action, which the said attorneys may be able lawfully to establish; ” and the court, stating the conclusion at which it has arrived, said: “ The plaintiff’s attorneys are fully protected. They have their claim against their client, who has a fund of $2,600 on which they have a lien for their compensation ; and in addition they have the defendant’s written agreement, made for a valuable consideration, binding it to pay and discharge this claim and lien, and which is enforcible by action ; or they have the undoubted right, supported by numerous and uniform decisions, to proceed to judgment in this action for the protection and enforcement of their lien, either by default in case no answer has been served, or in the usual way if the action is at issue. (Peri v. New York Central R. R. Co., 152 N. Y. 521.) ” The order entered directing payment was accordingly modified by reducing the amount and by providing that, unless the sum so fixed was paid within a certain time, the plaintiff’s attorneys have leave to continue the action for the enforcement and collection of their lien.

It will be seen that the court did not decide directly the question as to the proper practice, but undertook, upon the facts before it, to adjust the rights of the parties by suggesting what would be a proper sum for the defendant to pay, and, in lieu of such payment ■within the time fixed, granted leave to the attorneys to continue the action for the enforcement and collection of their lien. So far as it bears upon the question we are considering, the decision is an intimation and a strong argument in support of the contention that an order obtained upon such a summary application is not to be enforced, it being left optional with the defendant whether to pay the amount or defend the action which the attorneys were given leave to prosecute for the enforcement of their lien. Thus, in the opinion, referring to the amendment of 1899 to section 66 of the Code of Civil Procedure, it was said : “ Among other amendments relating to the lien of attorneys this sentence has been added : ‘ The court, upon the petition of the client or attorney, may determine and enforce the lien.’ It is not necessary now to consider and decide the full scope and purport of this section nor how far it may have extended the power of the court to apply summary remedies in aid or settlement of the dealings and transactions between attorney and client. It is sufficient to say that it does not confer power to determine and enforce a stipulation in the action, not between attorney and client, although relating to the former’s lien. In Bailey v. Murphy (136 N. Y. 50) the Court of Appeals held that where a judgment was satisfied by the client for less than its. amount, without the knowledge of his attorney and without provision for his payment, the court might set aside the satisfaction as against the attorney’s claim, but had no power by order to determine the amount of compensation due the attorney. * * * In this case the attempt is to enforce payment of an attorney’s claim against one who is not his client, but who has assumed the client’s obligation, and the party so sought to be charged is entitled to assert any defenses he may have in the usual form and in the usual forum, and even to assert that he has actually made payment in accordance with the terms of his obligation and to have the issues tried by jury.”

The logical deduction from Pilkington v. Brooklyn Heights R. R. Co. as to the proper practice is that an attorney’s lien as against a defendant not his client must be enforced by action and not by motion. In Matter of Lexington Avenue (30 App. Div. 602; affd., 157 N. Y. 678, without opinion) it was held, as correctly stated in the head note, that “an attorney who has rendered services to an owner of property taken in a proceeding for the opening of an avenue in the city of New York in obtaining an award for the land so taken, is not entitled to have his claim for compensation under an agreement with the owner * * * determined upon a summary application by a petition entitled in the street opening proceeding * * * the payment of which may be enforced by action.” That being a special proceeding, it was therein held that section 66 of the Code, which then related to “actions only,” did not apply; but that case is authority for the proposition that in a special proceeding the remedy of an attorney to enforce his lien is by action, although instances are cited where the court, on application of the client, has proceeded in a summary way to determine the compensation due to an attorney for services rendered.

Those and many other cases that might be referred to are authorities for the statement that prior to the amendment of 1899 — except in special instances such as where there is a fund in court — the lien of an attorney is to be determined and its payment enforced, not in a summary way on motion or petition, but in the usual way by an action legal or equitable. It follows that the practice thus sanctioned is not to be departed from unless expressly changed by the addition made to section 66 of the Code by the amendment of 1899.

The language of the amendment would seemingly confine it to the adjustment of differences between the plaintiff and his attorney, and, as urged by the appellant, enable the court on petition toad minister a fund in possession of the court so that an attorney would be protected, to prevent the satisfaction of a judgment to his prejudice, or to set aside the satisfaction of a judgment so as to permit the attorney, if needful, to enforce his lien. There is nothing in the language of the amendment that in terms applies to a defendant or that takes away from him the right to have his day in court upon the question of his liability and the extent thereof. Whether the Legislature has power to take away the right to litigate in the usual way and in the ordinary forum the defendant’s liability and its amount involves a serious constitutional question which we are not called upon to determine, having reached the conclusion that the language of the amendment of 1899 does not relate to a -defendant, but merely aims at formulating a practice which, as between the plaintiff and his attorney,- will enable the latter’s lien to be determined or enforced by petition and order, instead of by Action.

The order accordingly should be modified, without costs, by directing that the defendant should pay the $130 within twenty days, or in default thereof leave should be given the attorney to prosecute the action to enforce his lien.

Van Brunt, P. J., Patterson, Ingraham and McLaughlin, JJ., •concurred.

Order modified as directed in opinion, without costs.  