
    (98 App. Div. 328)
    MATHOT v. TRIEBEL.
    (Supreme Court, Appellate Division, Second Department
    November 18, 1904.)
    L Attorney’s Lien—Enforcement—Parties.
    In an action to have an attorney’s lien declared on a contract between defendant and a third person and on the moneys coming to defendant thereunder, such person is not a necessary party.
    2. Complaint—Prayer.
    That a complaint asks greater relief than plaintiff is entitled to is not ground for demurrer.
    3. Attorney’s Lien—Commencement of Action.
    An attorney has a lien on papers of his client placed in his hands in the course of his employment, though he did not commence an action in the matter.
    Appeal from Special Term, Queens County.
    Action by William L. Mathot against Frederick E. Triebel to have an attorney’s lien declared on papers in his hands, including a contract between defendant and the state of Iowa, and on the money coming to defendant from the state of Iowa under such contract. From a judgment overruling a demurrer to the complaint, defendant appeals.
    Affirmed.
    The opinion at Special Term, per KELLY, J., is as follows:
    The questions whether there is more than one cause of action stated in the complaint, or whether, if more than one, they should be separately stated, are not before me on this demurrer, and are not material to its decision. The objection that the state of Iowa is a necessary party defendant does not seem to me to be well taken. Adams v. Fox, 40 N. Y. 577. The objections that the plaintiff’s lien is a “retaining lien,” and .therefore “passive”; that the plaintiff has no right to enforce it, or have the amount thereof determined ; and that the action is not justified—if sound (and I have grave doubt whether, admitting the validity of the lien, the attorney is barred from foreclosing it), are not grounds for demurrer. The fact that the plaintiff asked more in his complaint than he is entitled to would not make his complaint bad. No action or special proceeding had been commenced by the plaintiff, as attorney for the defendant, at the time of his discharge by defendant, and the defendant contends that until commencement of the action or ■ special proceeding no lien attaches; citing Code, § 66. But the Court of Appeals, in Matter of Knapp, 85 N. Y. 284 (at page 295), intimates that the lien exists under the Code before the actual commencement of the action. The plaintiff here is not confined to the statutory lien given by section 66 of the Code. “The remedy provided by the Code by means of petition is not exclusive, but cumulative, for a court of equity has always had power to ascertain and enforce liens.” Fischer-Hansen v. B. H. R. R. Co., 173 N. Y. 492, 66 N. E. 395. The lien of an attorney upon the papers of his client attaches not only for the costs and charges in the particular suit, but for any general balance in other professional business. Bowling Green Bank v. Todd, 52 N. Y. 489; Maxwell v. Cottle, 72 Hun, 529, 25 N. Y. Supp. 635. This is not a rule peculiar to attorneys, but applies to an ordinary factor. He has a lien upon goods consigned to and received by him for unpaid balances before accrued. Knapp v. Alvord, 10 Paige, 205, 40 Am. Dec. 241; Bryce v. Brooks, 26 Wend. 367. In the Matter of Knapp, supra, the court discusses the origin of the lien: “The general proposition that an attorney has a lien for his costs and charges upon deeds or papers or upon moneys received by him in his client’s behalf in the course of his employment is not doubted, nor does it stand upon questionable foundations. It comes to us super antiquas vias. As early as the year 1734 it was. held by Lord Chancellor Talbott to arise upon a contract implied by law, and as effectual as' if it resulted from an express agreement. * * * In our own state * * * Kent in his Commentaries (vol. 2, p. 641) puts it down as an established principle that an attorney has two liens for his costs—one on the papers in his hands, and the other on the funds collected.” And Judge Danforth says, at page 294: “It is plain, then, that right of lien exists. Its origin should not be lost sight of. The declaration in Ex parte Bush [7 Viner, Abr. 74] was restated by Chancellor Eldon in Cowell v. Simpson, 16 Ves. 279, where he described it as ‘prima facie’ a right accruing through an implied contract; and, as it exists in favor of those who have bestowed labor and service upon property in its repair, improvement, or preservation, the agreement implied must be that the person rendering it shall retain the property until compensation is made. The lien of an attorney stands on no higher ground. In Ex Parte Yalden, L. R. 4 Ch. Div. 129, James, L. J., says: ‘The things upon which they claim a lien are things upon which they have expended their own labor or their money,’ and asks: ‘Why are they not to have that lien in same way as any other workman who is entitled to retain the thing upon which he has worked until he is paid for it?’ ” I think, therefore, that under these decisions and the practice approved in the Fischer-IIansen Case, supra, the plaintiff has a right to maintain this action and that the complaint is good. The demurrer should be overruled, with costs, with leave to defendant to answer on payment of costs.
    Argued before HIRSCHBERG, P. J., and BARTLETT, WOODWARD, JENKS, and HOOKER, JJ.
    Blatchford & Sherman, for appellant.
    White & Case, for respondent.
   PER CURIAM.

Interlocutory judgment affirmed, with costs, on opinion of Mr. Justice KELLY at Special Term. 
      
       3. See Attorney and Client, vol. 5, Cent. Dig. § 403.
     