
    In the Matter of Harry L. Koenig, Appellant, against Ætna Casualty & Surety Co. et al., Respondents.
   Order denying petition to fix attorney’s statutory lien under section 475 of the Judiciary Law unanimously reversed on the law and in the exercise of discretion, and the petition granted, with costs to appellant. On the papers it is undisputed that plaintiff’s attorney served the summons on defendant Knickerbocker prior to a settlement by the carrier. As a consequence, the statutory lien attached and any settlement made by the carrier, as representative of defendant, was at its peril. However, it also appears from the papers without dispute that when the settlement was made the carrier’s representative had notice that there might be a retained lawyer, albeit at that time it did not know whether a summons had been served. In these circumstances, there is no issue tendered to defeat the attorney’s lien. Since under the retainer, which is also undisputed, the attorney is entitled to $820, the lien is fixed in that amount. While the statute appears to make no provision for fixing the lien as to the carrier, but only as to the other parties to the action, since the carrier had not interposed that objection at Special Term or in this court, it has waived the issue. Settle order on notice. Concur — Botein, P. J., Breitel, M. M. Frank, McNally and Stevens, JJ.  