
    James E. Wright, Pl'ff, v. Guillaume A. Reusens, Impl'd, Def't.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 12, 1892.)
    
    Attorneys—Lien—Mechanic's lien.
    Plaintiff, a contractor whose lien had been filed last, brought action to recover the sum claimed to be due on the contract, but subsequently discontinued the same and began this action to foreclose his lien, making the other lienors defendants. His attorney claimed that when the first action was discontinued the other lienors agreed to pay him a percentage for collecting the money and testified that he refused to discontiue unless he got the percentage, and they said it would be all right, while plaintiff testified that they were silent; and the other persons present testified that they did not hear anything said on the subject, and in this action the other lienors employed other attorneys. Held, that an agreement of this kind could not be implied from silence ; that such agreement was not proved, and that the attorney was not entitled to a lien bn the fund for such payment.
    Appeal by eight of the lienor defendants from a judgment awarding to Silas J. Owens, who was attorney for plaintiff, an attorney’s lien of ten per cent upon the recoveries of the appellants.
    
      O. W. Horton, for app’lts;
    
      Silas J. Owens, resp’t in person.
   Dykmam, J.

This action was commenced for the foreclosure of a mechanic’s lien for services and materials in the reparation of a dwelling house of the defendant. The plaintiff was the contractor, and the material men were made defendants.

Prior to the commencement of this lien suit, an action had been commenced in the name of the plaintiff against the defendant, but some of the parties in interest embraced the idea that their rights could not be protected in that suit, and it was discontinued, and the present action was commenced.

The attorney for the plaintiff was the same in both suits, but some of the lienors who were made defendants employed other attorneys.

The action was successful and the defendant paid the money into court. The defendants, who were lienors, recovered their respective claims, and now the attorney for the plaintiff demands a lien for his services against the fund to the extent of ten per cent upon the whole amount.

The demand for ten per cent is based upon an agreement which the attorney claims was made with him by the plaintiff and the other lienors, and which is denied by some of them.

After the interposition of the attorney’s demand for his lien, an order was made by consent that all questions of liens in his behalf should be tried before a justice of this court who took testimony under that order and subsequently decided in favor of the lien, and its enforcement against all the lienors except four.

He also allowed the attorney a trial fee of $30.00. Eight of the lienors have appealed from the order entered upon the decision.

The claim for the attorney’s lien is based upon an agreement, as we have said, and can be valid only against the parties who entered voluntarily into it.

Upon the development of the dissatisfaction with the first action H. P. Dane, a lienor, O. W. Horton, a lawyer, and Owens, the attorney for the plaintiff, went to Sing Sing to consult with Francis Larkin, a lawyer of that place, and the plaintiff Wright gave the following testimony respecting the conversation at that time, and stated substantially that Owens then refused to discontinue the first suit unless he could have ten per cent, for collecting the money, and Owens testified that he then said he would not withdraw the first action unless the parties agreed to pay him ten per cent., and that Horton and Dane said he was sure of the ten per cent, and there would be no trouble about it.

They were the only persons who testified in favor of Owens respecting the interview at Larkin’s office, where he claims the agreement was made, and their testimony fails entirely to prove an agreement

Wright says distinctly that when Owens said he would not withdraw the first action unless he got ten per cent, neither Dane nor Horton said anything.

Such an agreement as the necessities of this case demands cannot be inferred from silence; it requires the meeting of two minds. Ten per cent, cannot be deducted from the claims of these lienors without their consent. Owens was not their lawyer and can make no demand against them for services. His claim must be sustained by agreement or must fail.

So much for the testimony on the part of the claimants. On the part of the defendant, Larkin, and Horton and Dane, all testified that they heard nothing at Larkin’s office about a charge of ten per cent. Larkin is an old lawyer of high honor and integrity, and entirely disinterested. Horton is a young lawyer of high respectability and destitute of interest, and Dane, although interested, is a large lumber merchant in Peekskill and nothing appears against his character.

We cannot disregard the testimony of these witnesses, and it preponderates heavily against the memory of the principal witness.

The evidence fails entirely to establish an agreement by the appellants to pay the claimant ten per cent

An action to foreclose a mechanic’s lien is peculiar. When lienors are made parties defendants they really occupy an affirmative position, and their interests are often antagonistic. When the fund is insufficient for all, the reduction of one inures to the benefit of another. They claim the same as they would do if they were plaintiffs. They employ their own attorneys, and proceed entirely independent of the plaintiff. Therefore, after Owens discontinued his first suit, he represented the plaintiff, and his claim only. When Owens gave up the first suit, he did so without exacting any pay at that time, and these defendants all swear positively they made no agreement to pay him anything. They say they did not like him and employed other lawyers. Under such circumstances, an agreement to assist in the compensation of the plaintiff’s attorney will not be inferred nor found without satisfactory proof, and, as we have seen, the evidence here fails to establish an agreement.

If the claimant can acquire no lien against the appellant except by virtue .of an agreement, as the proof fails of either one, the order should be reversed, so far as the appellants are concerned, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Pratt, J., concurs; Barnard, P. J., not sitting.  