
    CASUCCI v. ALLEGHANY AND KINZUA R. R. CO.
    
      N. Y. Supreme Court, General Term, Fifth Department ;
    
    
      October, 1892.
    1. Evidence; compromise.] The defendants’ compromise and payment in settlement of plaintiff’s demand in a negligence suit does not establish the cause of action so as to dispense with evidence to show negligence, when the attorney subsequently brings the suit to trial for the enforcement of his lien.
    2. Attorney and client; enforcement of attorney’s lien) Upon the trial of an action for personal injuries, prosecuted by plaintiff’s attorney for the protection of his lien, after procuring an order setting aside a settlement of the action made by his client after issue joined, in consideration of the payment of a certain sum of money by defendant, —Held, that plaintiff’s attorney was not •entitled to recover one-third of the money paid in settlement by merely showing that he was entitled thereto by his agreement with his client for compensation, without giving any evidence to establish the cause of action in issue under the-, pleadings.
    3, Cases distinguished,.] Keeler v. Keeler, 51 Hun, 505, distinguished.
    Appeal by plaintiff from a judgment of the circuit court-held in Erie County.
    The action was brought by Guiseppe Lazzarone against' The Alleghany and Kinzua R. R. Co., to recover damages-for personal injuries occasioned by the defendants’ negligence.
    After issue was joined the defendant settled with the-plaintiff for $250, and in consideration thereof the plaintiff ' gave the defendant a release for all claims for damages by reason of the injuries received. The plaintiff’s attorney thereupon procured an order setting aside the settlement, and giving him leave to prosecute the action for the protection of his lien as attorney.
    
    
      At the trial, the plaintiff’s attorney offered the release-in evidence. Upon defendants’ objection the court excluded it as irrelevant and immaterial, and plaintiff’s attorney excepted. It was admitted that, by the agreement of plaintiff’s attorney with his client for compensation, he was to have one-third of the recovery or whatever he might settle the claim for and costs. The plaintiff’s attorney rested without giving other evidence and asked the court to direct .a verdict for one-third of the amount paid by defendant to plaintiff in settlement of the action'. The court denied the motion and directed a non-suit. Plaintiff’s attorney excepted.
    Plaintiff appeals to this court.
    
      Henry H. Seymour, for appellants.
    The plaintiff’s attorney was not required to prove the original cause of action; the doctrine in Keeler v. Keeler (51 Hun, 505), should have been followed.
    
      Charles S. Carey (Carey, Rumsey & Hastings, attorneys), for respondent.
    
      
       Code Civ. Pro. § 66, as amended in 1879, provides as follows “ 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 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 or counterclaim, which attaches to a verdict, report, decision or judgment in his client’s favor and the proceeds thereof in whosoever hands they may come ; and cannot be affected by any settlement between the parties before or after judgment.’’
      That an attorney’s lien before verdict or judgment does not attach to a cause of action, that is not assignable; see Oliwell v. Verdenhalven (N. Y. city ct. Gen. T.), 17 Civ. Pro. R. 362 ; S. C., 26 State Rep. 115 ; 7 N. Y. Supp. 99 (action for damages for personal injuries).
      S. P., Cahill v. Cahill (N. Y. city court, Sp. T.) 9 Civ. Pro. R. 241 (action for assault and battery).
    
   MACOMBER, J.

This action was brought to recover for personal injuries sustained by the plaintiff by reason of the negligence of the defendant in operating its train of cars on the 29th day of November, 1890. After issue was joined, a settlement was effected between the plaintiff and defendant, by which the plaintiff released all claim for damages on the payment by the defendant of .the sum of $250. It appears, however, that the plaintiff’s attorney had a contract with his client, by which, as a part of the compensation for his services, he was to receive one-third of the amount of the recovery, or one-third of any amount for which the defendant should settle the action. No notice of this' lien appears to have been given by the plaintiff’s attorney to the defendant, and probably, under section 66 of the Code of Civil Procedure, no such notice was necessary. The settlement above mentioned was, upon motion of the plaintiff’s attorney, made in his own behalf, so far set aside as to permit the prosecution of the action, and to enable the attorney to recover the amount of his lien as compensation for professional services. Upon the trial, the learned counsel for the appellant assumed the position that, by showing a settlement between the plaintiff and the defendant for the sum of $250, he, the attorney, had a right to recover in this action in the name of the plaintiff, but for the benefit of the attorney, one-third of that amount, without entering upon the merits of the questions presented by the pleadings, which put in issue every question raised by the plaintiff, save only that the cars of the defendant, a.t the time stated, were in fact derailed. The assertion that the plaintiff himself was a passenger on that occasion was denied; the facts of his injuries were denied; and the affirmative defense that whatever injuries he received were caused by his own carelessness was asserted in the answer.

So far as we- are aware, this contention, made by the learned counsel in his own behalf, presents such a case as has not been passed upon by the courts of this State. The case of Keeler v. Keeler (51 Hun, 505), cited by him, falls far short of holding any such rule to exist.

We are unable to hold, under this section of the Code, that in case of a settlement by a defendant with the plaintiff in a negligence case , the plaintiff’s lien may be thus easily worked out. Such, we think, could not have been the view of the counsel when he made the motion at Special Term to set aside the settlement as being made in violation of his lien, when he was perrfiitted by the order of the court, procured on such motion, so far to open such settlement as to permit him to prosecute the -case for the recovery of his lien. To hold otherwise would be tantamount to deciding that the defendant in such an action could not safely compromise or settle a claim for personal injuries caused through its alleged negligence, without being conclusively held to have admitted its legal liability. But compromises and settlements of actions never proceed upon any such hypothesis. Common experience shows that parties may often deem it for their best interests, without acknowledging liability, to' pay something rather than to litigate a contested claim. In any view that we may regard this case, we think that the trial judge was correct in non-suiting the plaintiff upon the trial, in absence of any evidence charging the defendant with liability for the injuries sustained .by the plaintiff.

All the judges concurred.

The judgment appealed from affirmed.  