
    MAX LEVY, APPELLANT, v. PUBLIC SERVICE RAILWAY COMPANY, RESPONDENT.
    Submitted July 5, 1917
    Decided March 4, 1918.
    A suit for damages for personal injuries having- been settled by the payment of $30- by the defendant to the xdaintiff, the court awarded to the attorney of the plaintiff the sum of $100 against the defendant under the- provisions of the Attorney’s Lien act of 1914 (Pamph. L., p. 410). If eld, that a judgment for an attorney’s compensation, given against the party with whom his client has settled, for a sum that is in excess of the total sum of such settlement is without support from such statute ; and further, that such compensation cannot he determined in a summary proceeding.
    On error to the Supreme Court.
    For the appellant, Max Levy, pro se.
    
    For the respondent, Lefferts S. Hoffman and Leonard J. Tynan.
    
   The opinion of the court was delivered by

Garrison, J.

This is a proceeding under the Attorney’s Lien act of 1914 (Pamph. L., p. 410), which is as follows:

“After the service of a summons and complaint in any action at Law, or the filing of a bill of complaint or petition in the Court of Chancery, or the service of an answer containing a counter-claim in any action at law, the attorney, solicitor or counsellor at law who shall appear in said cause for such party instituting the action at law, or suit, or filing the petition, or counter-claim, shall have a lien for compensation, upon his client’s cause of action, suit, claim or counterclaim, which shall contain and attach to a verdict, report, decision, decree, award, judgment or final order in his client’s favor, and the proceeds thereof in whosoever hands they may come; and the lien shall not he affected by any settlement between the parties before or after judgment or final order or decree. The court in which such action, suit or other pro‘ceeding is pending, upon the petition of the attornéy, solicitor or counscllor-át-law, may determine and enforce the lien.”

The appellant, an attomey-at-law, brought an action for his client in the District Court fox damages for personal injuries which was settled by the parties themselves by the payment of $30 by the defendant to the plaintiff, and the giving of a general release by the plaintiff to the defendant. Thereupon, the attorney petitioned the District Court that he he awarded for his services to the plaintiff a sum of not less than one hundred dollars against the defendant, upon which petition, after a hearing, the District Court adjudged, “That said Max Levy, plaintiff, recover against said Public Service Bail way Company, defendant,, the sum of $100.”’

This judgment was vacated by the Supremo Court in certiorari upon grounds that are thus stated in its per curiam memorandum: “We do not find it necessary to determine the correctness of the procedure here, for, conceding its correctness we find no warrant for the trial court’s trying the original case against the defendant in the absence of the client, and awarding to the attorney as a fee over three times the amount his principal received upon the settlement, in the face of a written contract between the two which limited the attorney’s claim to one-half of the settlement.”

The Supreme Court evidently misapprehended the facts of the case, for, in the first place, the attorney did not try his client’s case against the. defendant but only the existence of a cause of action in his client and the reasonable value of his services in the prosecution thereof; and, in the second place, there was no contract between the attorney and his client that limited the attorney’s claim to one-half of a settlement made hv the client; the contract permitted the attorney to retain fifty per. cent, of “all moneys received by him by way of settlement,” but was silent as to a settlement made by the client. The attorney has throughout consistently and correctly contended that the percentage contract was not involved in any aspect of the. present proceeding.

While we cannot concur in the grounds upon which the Supreme Court based its judgment, we think that the judgment itself should be affirmed upon the ground, among others, that the statute does not authorize the enforcing of an attorney’s lien for a sum in excess of the total value of the claim that is made the subject of such lien.

The statute, it will be observed, does not take away the right of parties to settle their litigations, neither does it alter the conclusive effect of such a settlement when honestly made. The value of the client’s claim was, therefore, as effectually liquidated at $30 by the executed settlement as if his suit had been on a due bill for that amount; and surely no one would contend that if such a suit was settled by the payment of $30 to the plaintiff, his attorney could recover $100 additional as the value of his lien on such $30 claim.

A lien, being in its essence a right to retain something, the notion that it can be more extensive than the thing that is to he retained belongs to a topsy-turvy world where streams rise higher than their sources and a part is greater than the whole.

Technically considered the situation is this: The statute of 1911 creates a new remedy for the enforcement of an old right. The new remedy is the lien given by the statute upon the client’s cause of action, suit, claim or counter-claim, and any verdict, report, decision, decree, award, judgment or final order and the proceeds thereof.

In the present case the only things thus enumerated to which the lien attaches are the client’s “cause of action, suit and claim.” Subject to the attorney’s lien these chose? are the property of the elienl to deal with as he will, provided lie he guilty of no fraud.

Among other things he may determine his cause of action, and liquidate his claim by a settlement with his adversary. ’Phis does not unhorse the attorney’s lien for compensation. What it does is to place a maximum valuation upon the subject of the lien beyond which the remedy given by this statute does not purport to go. Whenever, therefore, a judgment for the attorney’s compensation is given against the party with whom the client has settled for a sum that is in excess of the total sum of such settlement, such judgment is necessarily without support from the statute.

There is, however, another and more fundamental error in the judgment of the District Court in that it rests upon a summary determination of the amount of the compensation to which the- plaintiff’s attorney was adjudged to be entitled as the value of the services rendered by him to his client. Such determination is necessarily based upon the nature, extent and value of such services, all of which are jury questions, especially when they arise between parties between whom the relation of attorney and client does not exist. The statute may or may not give to the plaintiff’s attorney a right of action against a defendant who has settled with the plaintiff, to be worked out upon the basis of his services to his client, but the language of the statute will be searched in vain for any expression of a legislative intent that the value of such services shall be determined in a summary proceeding. This being so, a decision that such a provision, if it existed, would violate the constitutional conservation of trial by jury would be clearly obiter.

Upon the foregoing grounds, without regard to- any other question, however fundamental, the judgment of the .Supreme Court reversing the judgment of the District Court is affirmed.

For affirmance — The Chancellor, Chief Justice, Garrison, Swayze, Trenchard, Bergen, Black, White, Heppenheimer, Williams, TAYLOR, GARDNER, JJ. 12.

For reversal — None.  