
    Morris Weinstein, Respondent, v. Lottie Seidmann and Others, Defendants, Impleaded with Moses Feltenstein and Abraham Rosenstein, Appellants.
    First Department,
    June 2, 1916.
    Attorney and client —charging lien on cost of action— Judiciary Law-construed — only attorney of record entitled to lien —when retainer does not effect assignment of fund or create lien.
    The lien of an attorney at law upon the proceeds of an action created by sections 474 and 475 of the Judiciary Law is given only to the attorney of record.
    Hence, an attorney, not an attorney of record, but who acted merely under a written retainer to perform legal services after action brought, is not entitled to maintain a suit in equity to enforce the statutory lien. Where such retainer is merely an agreement to pay the attorney out of the recovery or settlement, it does not effect an assignment of part of the fund, nor give him a lien thereon.
    Appeal by the defendants, Moses Feltenstein and another, 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 20th day of March, 1916, denying their motion for judgment on the pleadings and overruling their demurrer to the amended complaint.
    
      Abraham Rosenstein, for the appellants.
    
      Andrew Byrne [Leonard F. Fish with him on the brief], for the respondent.
   Laughlin, J.:

This is a suit in equity by an attorney to enforce an alleged lien upon a fund of $750, being the amount paid or agreed to be paid by the defendant Erdenbrecher in settlement of an action for personal injuries brought against him by the defendant Lottie Seidmann on the 15th day of March, 1915. It is alleged that the appellants acted as her attorneys in that action and represented her in making the settlement, which is alleged to have been effected on the 14th day of January, 1916, and although it is not expressly alleged that they were the attorneys of record for her in the action which was settled, that may fairly be inferred. But however that may be, it is quite clear from the allegations of the amended complaint that the plaintiff herein was not the attorney of record for the plaintiff therein originally, and it is not shown that he ever became the attorney of record for her.

The lien is asserted by virtue of sections 474 and 475 of the Judiciary Law (Consol. Laws, chap. 30 [Laws of 1909, chap. 35], as amd. by Laws of 1912, chap. 229). Plaintiff predicates his right thereto on a retainer in writing signed by the defendant Lottie Seidmann under date of June 14,1915, three months after the action is alleged to have been commenced against Erdenbrecher, by which she agreed to pay the plaintiff fifty per cent “ of whatever money may be realized ” by her “by judgment, settlement or compromise ” for services rendered and to be rendered by him “in regard to” her claim “against the proper defendant ” for damages sustained by her “on or about the 15th day of March, 1915.” The plaintiff alleges that, pursuant' to the retainer, he performed work, labor and services in preparing and investigating the claim, and in preparing a complaint, and in instituting “a certain motion,” and that he “attended court and rendered various legal services in connection with the aforesaid claim, and was ready and is willing to continue to perform any or all services required to be performed, and did duly perform all services required in said claim or action.”

The statutory lien conferred by section 475 of the Judiciary Law is given to the attorney of record only (Harding v. Conlon, 146 App. Div. 842, 846; Schiefer v. Feygang, 141 id. 236; Matter of Heinsheimer, 214 N. Y. 361; Matter of Rieser, 137 App. Div. 177), and that is plainly indicated by the phraseology of the section, which is as follows: “From the commencement of an action or special proceeding, or the service of an answer containing a counterclaim, the attorney who appears for a party has a lien upon his client’s cause of action, claim or counterclaim, which attaches to a verdict, report, decision, judgment or final order in his client’s favor, and the proceeds thereof in whosoever (sic) hands they may come; and the lien can not be affected by any settlement between the parties before or after judgment or final order. The court upon the petition of the client or attorney may determine and enforce the lien.”

The lien claimed by the plaintiff is not a possessory or retaining lien, but a charging lien on the cause of action, and the money paid or to be paid in settlement thereof. Such a lien was given at common law, and is now embodied in the statute, but it is given only to the attorney of record. (Matter of Rieser, supra; Harding v. Conlon, supra; Matter of Heinsheimer, supra.) The retainer does not purport to give a lien, nor does it constitute an assignment of part of the fund, for at most it is an agreement to pay the plaintiff out of the recovery. (Bacon v. Schlesinger, 171 App. Div. 508, and cases cited.) No cause of action, therefore, is alleged against the appellants.

It follows that thd order should be reversed, with ten dollars costs and disbursements, and motion granted and complaint dismissed as to appellants, with ten dollars costs.

Clarke, P. J., McLaughlin, Scott and Dowling, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, and complaint dismissed as to appellants.  