
    William M. Howitt, App’lt, v. Isaiah M. Merrill, Impleaded, etc., Resp’t.
    
    
      (Court of Appeals,
    
    
      Filed March 26, 1889.)
    
    1. Attorney’s lien—May be waited or lost—Code Crr. Pro., § 66.
    The lien which is given to an attorney by Code Civil Procedure, section 66, upon the cause ot' action, etc., of his client may be waived or lost by the conduct of the attorney.
    2. Same—Practice—Form of relief to enforce discretionary.
    Whether relief should be given against a fraudulent satisfaction, upon a summary application by motion, or upon action b: ought, is within the discretion of the supreme court, subject to no interference by an appellate tribunal.
    Appeal from an order of the supreme court, general term, second department, affirming an order of the special term filed in Rockland county clerk’s office, denying & motion to vacate the satisfaction of judgment in this action to the extent of plaintiff’s attorney’s costs, etc.
    
      Charles R. Hall, for app’lt; Thomas W. Fitzgerald, for resp’t.
    
      
       See 17 N. Y. State Rep., 1007.
    
   Danforth, J.

—On the 24th day of May, 1881, the plaintiff, by Van Name, his attorney of record, obtained judgment against the defendant for $230 damages and $107.86 costs and disbursements. On the 14th of April, 1882, the defendant paid the plaintiff $150, and took from him a satisfaction piece. Both plaintiff and defendant refuse to pay the attorney his costs in this action, and the attorney in his own behalf moved the court to set aside “the satisfaction of the judgment to the extent of the costs and disbursements.” At special term the motion was opposed by affidavits and was denied by the court. Upon appeal, the general term affirmed the order.

The plaintiff’s lien upon the cause of action and the judgment is undoubted (uode, § 66), but the lien might be waived or lost by the conduct of the attorney, and whether, assuming its existence, relief should be given against a fraudulent satisfaction, upon a summary application by motion, or upon action brought, was within the discretion of the supreme court, subject to no interference by an appellate tribunal. Here the appeal in both courts was by the plaintiff in the action and his attorney jointly. If the motion papers are to be credited, it might easily be held that the plaintiff colluded with the defendant, and for aught that appears, the supreme court thought it expedient to leave the attorney to assert his right, if any -he had, by action.

The appeal should therefore be dismissed.

All concur.  