
    William H. Sullivan and James F. Sullivan, Plaintiffs, v. John McCann and Theodore Kauffeld, as Executors of and Trustees under the Last Will and Testament of John Sullivan, Deceased, Respondents, Impleaded with James Sullivan and Others. Edward W. Fox, Appellant.
    First Department,
    May 11,-1906.
    Attorney and client—attorney has no right to continue action to .protect his'lien after a discontinuance hy client—practice — attorney cannot assert lien hy intervening in motion for discontinuance when no settlement is made by parties.
    An attorney having a contract entitling him. to a percentage on any, recovery or on any sum received hy his client on a settlement is not entitled to continue the action for the purpose of fixing the amount of his compensation when the client discontinues the action without receiving any sum in settlement.
    Such attorney still has a lien upon the cause of action, for the same is not éxtin- . guished by such discontinuance, and also upon any sum the client may thereafter receive hy reason of his claim. .. ..
    But such lien will not be determined on a motion for discontinuance on the affidavit of the attorney setting out the facts, which is not served upon the client. Such affidavit cannot he treated as a petition under section 66 of the Code of Civil Procedure, but the attorney will be remitted to proper proceedings against the client under said section.
    Appeal by Edward W. Fox, the plaintiff’s attorney, from a,n 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 2d day of April, 1906, granting the respondents’ motion for the discontinuance of the above-entitled action, without costs to any party as against the others.
    
      .Louis Frankel \Jol> E. Hedges with him on the brief, Edward W. Eox, attorney], for the appellant. -
    .John F. McCann, Jr. \Henry G. EJdert with him on the brief], for the respondents.
   Clarke, J.:

This action was brought by two grandsons of John Sullivan, deceased, to construe the last will and testament of said decedent which liad been admitted to probate in blew York county on or about March 9, 1886. The complaint asked that certain provisions of said will directing that the surplus income .be applied for the payment of mortgages on tire property left by said decedent, and to invest and reinvest such surplus income after paying off such mortgages until the determination of the trust estate, be declared invalid. The complaint also asked for an accounting by the trustees. The plaintiffs had entered into a contract, under seal, with the attorney,' which provided: “We * * * do hereby retain Mr. Edward W. Fox * * ' * as our attorney, to represent us in all matters relating to the estate of our deceased grandfather, John Sullivan,. and we hereby "authorize the said Edward W. Fox to institute such proceedings as may be necessary in any court to enforce our rights or to protect our interests in said estate, and said Edward W. Fox is hereby authorized to commence any action at’law or in equity for an accounting ; for the. construction of the last will and testament of said John Sullivan, deceased, or otherwise, as said Edward W. Fox may deem necessary for such purposes, and t¡o engage and employ such counsel as the said Edward W. Fox may deem necessary therefor. We hereby agree to pay the said Edward W. Fox the sum of twelve and one-half (12½%) per cent each, on any amount which We may recover, or to which we may be entitled by a decree or judgment in any such actions of proceedings instituted by the said Edward W. Fox; or in case of settlement or adjustment of our rights, or interests in said estate, the said Edward W. Fox shall be entitled to the equal sum of twelve and one-half .(12½%) per cent each on the amount to which we would be entitled, or would recover by. decree or judgment were ■ it not for such settlement or adjustment, it is hereby expressly understood that said Edward W. Fox is. tó be entitled to twelve and one-half (12½%) per cent each on any amount of the accrued income to which we may be entitled or which we may recover as above from the estate of said John Sullivan, deceased, exclusive of any costs and allowances and which may be granted by the court,' and which said costs and allowances are to belong to said Edward W. Fox, in addition to said sum of twelve and "one-half (12½%) per' cent each.”

After the preparation and service of the summons and complaint all of the parties agreed to a discontinuance, it being set forth in the papers by the trustees that no consideration of any sort had been paid to the plaintiffs, or agreed to be paid or intended to be paid, voluntarily or otherwise, for their agreement that'the action be discontinued. The only reason given by the plaintiffs for their desire to discontinue is as follows: “ That since the bringing of said, action he has regretted bringing any such case, and after due deliberation and consultation with his family lie has'come to the conclusion to absolutely withdraw from the case. It is his intention, therefore, to enter into any agreement with the trustees which will dispose of the case in the quickest possible manner. Deponent is willing to abide by any disposition of tlje case which the trustees may see fit to make,” each plaintiff making a similar affidavit. Upon the return of the order to show cause why the motion for a discontinuance should not be granted, the attorney for the plaintiffs filed an affidavit in which he set forth at length'his Connection with the case, the services rendered by him, and his contract with the plaintiffs, and, averring that he had no desire to stand in the way of discontinuing the action if his rights were properly protected, prayed that the court .might summarily determine his rights according to the provisions of section 66 of the Code of Civil Procedure, “ and that an order may be entered discontinuing this action upon the payment to this deponent of the sum of Six thousand and two hundred and fifty ($6,250) dollars, besides costs and disbursements to be taxed by the clerk of this court, and that such sum should remain a lien upon the shares of the accumulated income to which plaintiffs are or may hereafter be entitled to, and that the court may make such other and further orders herein as may be proper or necessary to enforce the rmedies provided in section 66 of the Code of Civil Procedure.” - ' '

The learned court made ah order simply discontinuing the action “.without further costs to any party as against the others,” and from said order the attorney for the plaintiffs appeals. The attorney makes no objection to the discontinuance of the action. He admits the right of the parties as between themselves to put an end to the litigation.' His grievance is that his claim was not, established summarily and a lien for the amount thereof declared.

Section 66 of the Code: of Civil Procedure provides that; “ The compensation of an attorney or counsellor for his services is governed by agreement, express or implied, which is not restrained by law. 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 hands they may come, and the lien can not be affected by any settlement between the parties before or after judg-. ment or final order. The court, upon the petition of the client or attorney, may determine and enforce the lien.”

A valid contract under seal retained the attorney in all. matters connected with the estate of, plaintiffs’ grandfather, and his compensation by express agreement was fixed upoú a percentage basis of the amount recovered, or, in case of settlement or ad justment, on the amount plaintiffs would be entitled to “ or would recover by decree or judgment were it not for such settlement or adjustment.” Relying upon such contract the attorney has made investigations, performed services, drawn and served papers and employed counsel. Without his consent, without payment or security for the payment of his. services, his clients adjust their differences with the defendants and discontinue the action. What rights has the attorney and how is lie to enforce them ? He has by the section (Code Civ. Proc. § 66) referred to, a lien upon his client’s cause of action or claim. There is no doubt but that this lien attaches not only to a verdict, decision or judgment and the proceeds thereof, but also in case of settlement before the judgment- or trial, “ it attaches to the amount agreed upon in settlement the instant that- the agreement ds made, and if ' the defendant pays over to the client .without providing for the-lien of the attorney he violates the rights of the latter and must stand the consequences. * *• * The'lien was not affected by the adjustment, but leaped from the extinguished cause of action to the amount agreed upon in settlement.” (Fischer-Hansen v. Brooklyn Heights R. R. Co., 173 N. Y. 502.)

But in the Fi'scher-'IIansen case there were two things which differentiated it from the case at bar. There was a settlement for a money consideration between the parties, and there was an extinguishment of the cause of action by the delivery of a release under seal. Upon these papers no pecuniary settlement has been made; no amount jbas been fixed as paid or to be paid upon which the agreed percentage could be calculated or to which the lien could attach. Nor has the cause of action or claim of the plaintiffs been extinguished. The suit has been discontinued, but there is no proof that the claim under their grandfather’s will has been affected or that when the trustees come to account, as sometime they must, the questions raised in the complaint herein may not be raised by the plaintiffs.- So that we have here a different question from those heretofore adjudicatéd.,

In Matter of King (168 N. Y. 53) stocks and b'onds, assets of a trust estate, were removed into this State from the jurisdiction of the New Jersey court, and the New Jersey trustee employed attoiv neys in this State to recover the securities. After a long litigation they were successful, and, the securities being in the possession of the Central Trust Company subject to the order of the court, and the trustee having disputed the attorneys’ bill, they instituted a proceeding under section 66 of the Code of Civil Procedure to have the amount of their lien "determined arid enforced. It was upon those facts that the court said : “ In this case the petitioners had a lien created by statute. The proceedings provided for by the Code are instituted by a petition and are in the nature of the foreclosure of a lien. * * * The Special Term undoubtedly could have retained the proceedings, tried out the question as to .the value of the petitioners’ services and determined the rights of the parties without a referee, but the petitioners were entitled to have their right's determined by the court either with or without the aid of a referee. The court could not properly, in the exercise of its discretion, deprive the petitioners of this remedy. The remedy giv.en is equitable in character, and we think the equity side, of the court has jurisdiction.”

In Matter of Regan (167 N. Y. 342) a decree had been obtained and entered in the'Surrogate’s Court which had been satisfied in derogation of the rights of the attorney, and it Was held that the surrogate had power to protect the lien of an attorney upon the judgment or decree,, and had power to vacate the satisfaction of the decree.

In Matter of Fitzsimons (174 N. Y. 15), in a proceeding to compel an accounting by an administratrix in the Surrogate’s Court, a collusive settlement was had behind the attorney’s back. 'Upon the consent and release so obtained .a motion- was made to approve the account. Upon that motion the attorney presented a petition • setting forth facts entitling him to a part of any recovery to which his clients would be entitled upon such accounting and to compensation as attorney for the contestants. He also asked that his rights ■as such attorney under the agreement between himself and the contestants be determined in that proceeding and the proceeding coptinued .for that purpose. The court said: That lie had a right to present such a petition to the Surrogate’s Court,.and that it Was the duty of. the court to continue, the proceeding for the purpose of enabling him to establish his right to the compensation claimed, especially as his client was insolvent and’ the. alleged settlement was secret and collusive, is abundantly established by the plain provisions of the statute and the decisions of this court. * * * • But the Appellate Division dismissed the appellant’s petition and denied' his right to establish such lien before any evidence as to the facts had been given, and with no proof before'it except that set forth in the affidavits used upon the motion. * * * The learned Appellate Division erred in dismissing the * * * petition and denying him the relief sought when there had been no investigation or trial as to the facts.’’ . • ■ •

In Smith v. Acker Process Co. (102 App. Div. 170) Mr. Justice Williams, after reviewing the cases, said: “ It seems to us from al consideration of these late expressions of the Court of Appeals, that we should mot .favor the continuance of an action.for the benefit of • i the attorney’s'lien. Its only -object would, be to arrive at the attorney’s compensation in a case where there has been an, agreement with the client for, a percentage of the recovery, and even in such a case the result of a trial after a-settlement would hardly be a fair indication of what the recovery would have been in the absence of the settlement which was contemplated by the agreement originally made. It seems to us even in such a case a more satisfactory determination would be arrived at by the court with or without the aid of a referee under section 66 of the Code of Civil Procedure.”

In the Fischer-Hansen Case (supra, 492) it was held that a cause of action was not the property of the attorney but of the client, and that the existence of the lien does not permit the plaintiff’s attorney to stand in the *■ way of a settlement.

Applying these cases to the facts now before us, we think that the court below was right in making the order of discontinuance appealed from; that the action should not have been continued for the mere purpose of fixing the amount of the attorney’s compensar tion. We think, also, that the attorney, having the contract with his clients that he did, had a right, which the court has no discretion to refuse, to have the amount due him, as between himself and his clients fixed under the provisions of section 66 of the Code. The contract still exists and the claim of the clients does not appear to have been extinguished. We think that, inasmuch as it does not appear that any sum was paid or agreed to be paid in settlement,. and as, therefore, the lien only attached to the claim, or cause of action, so far as the defendants are concerned there is no lien to be determined or enforced. So faiq as they are concerned, it is a shadow without substance. Further, as the question is now between the attorney and his clients, we should not treat the attorney’s answering affidavit on the motion for an order of discontinuance, which does not appear to have been served upon his clients, and to which they have not interposed an answer, as a petition under section 66 of the Code, but should follow the course taken in Smith v. Acker Process Co. (supra), and^grant leave to institute such proceedings to the end that upon proper papers the questions may be squarely raised between the interested parties and decided by the Special Term on the facts.

With this leave, the order appealed from should be affirmed, with ten dollars costs and disbursements, to be paid by the appellant;

O’Brien, P. J., Ingraham, McLaughlin and Houghton, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements, to be paid by appellant. Order filed.  