
    Achille J. Oishei, Respondent, v. Metropolitan Street Railway Company and Domenico Gallo, Appellants. (Action No. 2.)
    
      Attorney and client — attorney’s lien on settlement by client — no lien for costs. •
    
    Appeal from a judgment entered upon a. decision after trial at Special Term.
   McLaughlin, J.:

A minor son of the defendant Gallo sustained personal injuries by reason of the negligence of the defendant railway company,-and Gallo thereafter brought an action against it to recover damages fpr the loss of his services. Prior to the commencement of the action he entered into a written agreement with his attorney, which provided, among other things, as follows: I do hereby agree, stipulate and contract with my said attorney to pay him one-half of any settlement or recovery had in said action, and* he is, in addition thereto, to receive all costs and interests recovered, or to which he may be entitled. And I further agree with my said attorney not to make any settlement unless he is present and receives his share in accordance with this agreement.” That action Was settled without the knowledge or consent of the plaintiff’s attorney for §100, and a general release given. After the settlement the attorney (this plaintiff) brought this action against the railway company and Gallo, to enforce a lien which he asserted he had upon the proceeds of the settlement. The action was tried without a jury and in the "decision filed judgment was entered adjudging and decreeing that the plaintiff had a lien upon one-half of the consideration for the settlement, viz., §50, and in addition thereto the costs in the negligence action to the time of the settlement, viz., §95.50, making in all §145.50. Each defendant appeals from this judgment. For the reasons stated in • Oishei v. Metropolitan Street R. Co. No. 1 (110 App. Div. 709), the judgment is erroneous in so far as it determined that the plaintiff had a lien on $95.50, the costs in the negligence action to the time of settlement, and must be modified by deducting therefrom said sum. The judgment appealed from, therefore, is modified by deducting therefrom the sum of §95.50, and as thus modified the same is affirmed, without costs to either party. O’Brien, P. J., Ingraham, Laughlin and Clarke, JJ., concurred. Judgment modified as directed in opinion, and as modified affirmed, without costs to either party. ;  