
    The Publishers’ Printing Co., Respondent, v. The Gillen Printing Co., Appellant.
    (City Court of New York—General Term,
    January, 1896.)
    1. Default—Attorneys.
    A judgment by default entered by the plaintifE’s attorney without notice of a settlement of the action by the parties should only be opened on condition of payment to the attorney of his taxable costs and disbursements incurred for sheriff’s fees on the execution.
    2. Attorneys •—Lien.
    The attorney’s lien for costs in an action is absolute, and he should be protected to the fullest extent in the enforcement of his right.
    Appeal from an order made át a Special Term denying the defendant’s motion to vacate and set aside a judgment entered herein by default, together with the execution issued thereon, unless the defendant pays to plaintiff’s attorney the costs and disbursements of the action besides the sheriff’s fees; and that in default of the payment of such costs and disbursements plaintiff be at liberty to collect the same by levy and sale under the execution.
    
      Smith & Cochrane, for appellant.
    
      David Solomon, for respondent.
   Botty, J.

This action was brought to recover the sum of $291.07 for work, labor and services rendered and materials, furnished the defendant.

The summons and complaint was served on defendant on November 9, 1895.

The time to answer expired on November fifteenth. On November sixteenth the plaintiff’s attorney, not aware that any settlement of the action had been effected between the parties, and the defendant having made default in appearing and answering, entered judgment by' default for the amount of the plaintiff’s claim and interest, viz., $291.85 and $20.96 costs and disbursements ; total, $312.81, and issued execution thereon.

The defendant then moved at Special Term to vacate and set aside said judgment and execution on the ground that on November fifteenth (on the day when the time to answer expired) the defendant had paid to plaintiff the sum of $291 in full settlement of the action, and the plaintiff and defendant had entered into a stipulation to discontinue the action without costs to either party as against the other.

The court made an order denying the motion unless the defendant paid the plaintiff’s attorney the sum of twenty dollars and ninety-six cents costs, and also the sum of twenty-seven dollars and sixty-four cents sheriff’s fees incurred under the execution, and directed that on payment of the same the judgment be satisfied, and in default of payment of such costs and disbursements plaintiff be at liberty to collect the same by levy and sale under the execution issued in this action.

In view of the fact that plaintiff’s attorney had no notice of the settlement of the action, I think it was both regular and proper to enter up judgment.

The defendant having settled with the plaintiff without notice to the attorney, did so at its own risk; such a settlement cannot affect the rights or claims of the attorney upon his client’s 'cause of action for compensation which are secured him by virtue of section 6G of the Code.

It is a well-settled rule of practice that the attorney’s lien for costs in an action is absolute, and he should be protected to the fullest extent in the enforcement of his right in the premises.

Nothing could be gained by vacating the judgment and then compelling plaintiff’s attorney to apply to the court for leave to prosecute the action for the enforcement of his claim for costs, which application if granted could only result, unless the attorney’s costs were paid, in a re-entry of judgment in plaintiff’s favor and the issuance of an execution thereon for the collection of the amount due the plaintiff’s attorney for costs, etc.

Under the circumstances the order made at-Special Term, in so far as it protects the attorney for the enforcement of his claim for costs and disbursements incurred for sheriff’s fees and so forth, was proper.

Order appealed from affirmed, with costs.

Conlan, J., concurs.

Order affirmed, with costs.  