
    Robert B. Poole, App’lt, v. Beriah B. Belcha, Resp’t.
    
      (Court of Appeals,
    
    
      Filed February 12, 1892.)
    
    1. Attoeneys—Lien oeSettlement—Code Civ. Peo., § 66.
    In order to warrant the court in disregarding a- settlement and release made in an action it must be shown that to .give full effect to them will operate as a fraud upon the attorney or at least to his prejudice by depriving him of his costs or turning him over to an irresponsible client.
    2. Same.
    ■Where it appears that plaintiff has paid the judgment and defendant has released him, in the absence of some showing that the attorney would be prejudiced by allowing the settlement to stand, the court should not permit any further proceedings in the cause, such as an appeal to the general term.
    Appeal from order of supreme court, general term, third department, striking an appeal to that court from the calendar and affirming judgment for defendant entered upon a verdict of a. jury.
    
      James Coupe, for app’lt; Eugene E. Sheldon, for resp’t.
   O’Brien, J.

This is an appeal from an order of the general term striking an appeal to that court from the calendar and affirming, with costs, a judgment for the defendant entered upon a verdict. The action was brought to recover certain specific personal property, which was delivered to the plaintiff at the commencement of the action. On the trial the plaintiff failed, and a verdict was rendered for the defendant. A motion was made by the plaintiff for a new trial on the minutes, which was denied June 24, 1887. The plaintiff appealed to the general term from this-order July 23, 1887. Judgment was entered on the verdict December 1, 1887, but no appeal was taken from this judgment. October 25, 1887, the plaintiff served a proposed case containing-exceptions, and subsequently amendments thereto were served by the defendant, but the case was not filed or certified, and no copy was served on the defendant’s attorney. On an affidavit showing these facts the defendant’s attorney gave notice of a motion to be made at the general term September 8, 1891, for an order striking the appeal from the calendar and for an affirmance of the judgment. The verdict upon which the. judgment was entered was for $286.28, the value of the property as found by the jury. The motion to strike the cause from the calendar and affirm the judgment was met by an affidavit on the part of the plaintiff showing that on September 2, 1891, the plaintiff paid to the defendant $800 and settled the case; that upon such settlement it was agreed that each party should pay his own attorney and thereupon the defendant executed and delivered to the plaintiff a general release under seal, a copy of which was attached to the affidavit. It is as broad and comprehensive in its terms as words could make it. It releases and discharges all actions, causes of action, suits, debts, bonds, judgments, executions, controversies and demands whatsoever, in law or in equity, which the defendant then or ever had against the plaintiff or might have thereafter. This instrument was duly acknowledged, and the question is whether the general term under such circumstances could properly have made the order appealed from. The payment of the $300 by the plaintiff to the defendant and the execution and delivery of - the release operated as between the parties at least to satisfy and discharge the judgment and to discontinue the appeal, unless the judgment and appeal notwithstanding the release is kept on foot by the provisions of § 66 of the Code. This section provides that “ the attorney who appears for a party has a lien upon his client’s cause of action or counterclaim, which attaches too verdict, report, decision or judgment in his client’s favor, and the proceeds thereof in whosesoever hands they may come,” and this lien cannot be affected by any settlement between the parties before or after judgment. This provision does not prevent parties from settling and releasing judgments, suits and controversies. If the release has the effect of defrauding the defendant’s attorney of his costs the court has the power to and should set it aside and protect the attorney’s lien. But there was nothing shown on the motion to lead the court to believe that the attorney needed any protection. For aught that appears his client is able and willing to pay all his reasonable and proper charges, and if this is so why should the parties be prevented from settling the litigation in their own way. Neither the judgment nor the appeal should under the circumstances be kept alive after the release between the parties unless necessary for the protection of the attorney, and this is not claimed nor suggested.

In order to warrant the court in disregarding a settlement and release made in an action, it must be shown that to give full effect to them will operate as a fraud upon the attorney, or at least to his prejudice, by depriving him of his costs, or turning him over to an irresponsible client. The record does not present any such question. The order appealed from was not made upon the theory of protecting any lien that the defendant’s attorney had. It was made, upon a motion to strike the cause from the calendar, and affirm the judgment, an ordinary proceeding in a cause in which the attorney represented only his client, and not any interest in the costs that he had himself. For the purposes of this question the order must be treated as if it was obtained upon the-" application of the defendant in person after he had been paid the judgment, and had delivered the release. No one would then claim, that he was entitled to proceed any further with the case. The lien secured to an attorney by § 66 of the Code does not prevent the party who owns the judgment from receiving payment thereof and executing a discharge. When it is. is shown that such payment or discharge will operate to deprive the attorney of his costs,, the court has power to protect him, but it cannot be assumed that, a settlement is in fraud of his rights. Until the lien of the attorney is asserted in some way the judgment remains the property of the client. Wehle v. Conner, 83 N. Y., 237. We have had occasion recently to pass upon this question in another case. Lee v. V. O. Co., 126 N. Y., 579; 38 St. Rep., 662. There the attorney not. only had the statutory lien for costs, but by agreement was entitled to a part of the recovery. On the point now under consideration, Euger, Ch. J., said: “We are of the opinion that the existence of such a lien in favor of the attorneys does not confer a right on them to stand in the way of a settlement of an action which is desired by the parties, and which does not prejudice any right of the attorneys. We do not think that such an agreement, deprives a party of the right to control the management of his own cause, and to determine when the litigation shall cease, and how far it shall be extended. The client still remains the lawful ofrner of the cause of action, and is not bound to continue the-litigation for the benefit of his attorney when he judges it prudent to stop, providing he is willing and able to satisfy his attorney’s, just claims.”

When it appeared that the plaintiff had paid the judgment, and the defendant had released him, in the absence of some showing that the attorney would be prejudiced by allowing the settlement, to stand, the court should not have permitted any further proceedings in the cause. It follows that that part of the order which affirmed the judgment after payment and discharge of the same-was erroneous, and should be reversed.

So ordered, with costs.

All concur.  