
    George H. Lawrence and Others, as Executors, etc., of Elizabeth H. Sias, Deceased, Appellants, v. Edward M. Grout, as Comptroller of the City of New York, and Others, Respondents.
    First Department,
    November 18, 1910.
    Decedent’s estate — action by judgment creditors to enforce statutory liability of devisees — condemnation of lands before action brought — award treated as personal property—judgment creditor entitled to money judgment although claiming lien — measure of personal liability of devisees.
    Although after a decision that a judgment creditor of a testatrix has no lien upon an award made when lands devised by her were subsequently taken by eminent domain, and that the award has become personal property the same as if the devisees had aliened the land, the judgment creditor, suing under sectiou 101 of the Decedent Estate Law to enforce the statutory liability of the devisees, still demands a decree that the plaintiff has a lien upon the award and does not ask for personal judgment against the devisees, such judgment may, nevertheless, be entered.
    
      But in such action the devisees can only be charged with a personal judgment for the amount which they actually received as the net proceeds of the land taken on condemnation, and hence, where it has been previously held that the award is subject to the lien of the defendants’ attorneys, the judgment should be limiled to the excess of the award over the amount of.the lien.
    Ihbraham, P. J., dissented, with opinion.
    Appeal by the plaintiffs, George H. Lawrence and others, as executors, etc., from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 16th day of December, 1909, upon the decision of the court,, rendered after a trial at the New York Special Term, dismissing the complaint upon the merits.
    
      Henry C. Henderson, for the appellants.
    
      Louis Wendel, Jr., for the respondent George F. Binninger, as general guardian.
   Laughlin, J.:

The defendants Begina, Ida and Lillie Binninger were devisees of all of the real estate of their mother, Lizetta Binninger, who was indebted to the plaintiffs’ testatrix on a bond for the sum of $1,500, which was secured by a mortgage. Lizetta Binninger died seized of two parcels of land, one of which was covered by the mortgage to secure the bond'. There was a prior mortgage on this parcel which was foreclosed after her death, leaving no surplus applicable to the said indebtedness evidenced by the bond and mortgage held by the plaintiffs’ testatrix. This action was brought pursúant to the provisions of section 1843 of the Code of Civil Procedure, which is now section 101 of the Decedent Estate Law. (Consol. Laws, chap. 13; Laws of 1909, chap. 18), to enforce the statutory liability of the devisees. Before bringing this action the plaintiffs recovered a judgment against the executor of Lizetta Binninger and were unable to collect the same. They did not institute a proceeding pursuant to the provisions of section 2750 of the Code of Civil Procedure for a sale of the real estate to pay the indebtedness, but after the expiration of the period during which such a proceeding could be instituted, they commenced this action. The other parcel of real estate which was devised by Mrs. Binninger to her three children, the defendants, share and share alike, was subsequently to her death and prior to the commencement of this action acquired by the city by eminent domain proceedings, and the award therefor was naade to the defendant George F. Binninger as general guardian of said three defendants, in the sum of $8,408.63, and thereafter the award to the extent of $6,387.01 was duly directed to be paid in satisfaction of two mortgages which were liens on the premises at the time the condemnation proceeding was instituted. The balance of the award had not been paid at the time this action was commenced. The comptroller of the city was made a party defendant and judgment was demanded that the said indebtedness of Lizetta Binninger, deceased, to the testatrix of the plaintiffs be decreed to be paid out of the award. On the 17th day of March, 1904, an order was duly made in this action ‘authorizing the comptroller to deduct from the balance of the award the taxes and assessments, together with interest and percentages thereon which had accrued against the premises," and to pay the balance of the award into court without prejudice to the rights of the parties to this action and without prejudice to the interest or lien of Wendel & Bobeson, attorneys at law, for professional services in representing the devisees in the condemnation proceeding. The court' has found that pursuant to that order the comptroller deposited with the chamberlain to the credit of this action the balance of the award amounting to $2,285.54, and thereupon the action was discontinued as to him.

On the former appeal herein (112 App. Div. 241) this court reversed a judgment in favor of the plaintiffs upon the ground that it was not satisfactorily shown that the assets of the estate were insufficient to pay the debt, or that the plaintiffs had been, or would be, unable with due diligence to collect the claim by proceedings in the Surrogate’s Court, or by an action against the executor, or legatees, or next of kin. This court, in writing for reversal, drew attention to the fact that the prayer for relief was that the claim be declared to be a lien on the award and that it be paid therefrom, and stated that this was not authorized in any event, for where the devisees have aliened the land before the tiling of a notice of the pendency of the action the plaintiff is then entitled to. a judgment against them personally for its valúe (Code Civ.- Proc. § 1854), and where they'have not aliened it before the commencement of the action the judgment but not the claim becomes a lien upon the land and must direct that the debt, or the proportion thereof which the plaintiff is entitled to recover against the devisees, be collected out of such real property. (Code Civ. Proc. § 1852.)

On the new trial it was satisfactorily shown that everything requisite to the enforcement of the liability against the devisees has been complied with.

It appears that the firm of Wendel& Robeson brought an action against the plaintiffs and the defendants herein, other than the comptroller, and others to establish a lien on the award for their services in representing the devisees and in obtaining it. The plaintiffs in this action, as defendants in that action, pleaded substantially the same facts as are set up here and demanded -the same relief, and the trial resulted in a judgment decreeing that they had a lien on the award superior to that of the attorneys who represented the devisees in the condemnation- proceeding. That judgment was reversed on appeal (Wendel v. Binninger, 132 App. Div. 785) and this court held that the plaintiffs herein had no lien upon the award, but that the attorneys had a lien thereon to the extent of ten per cent of the amount paid into court. The effect of that decision is that as to these plaintiffs the award which had been made before the action was commenced became personal property in effect the same as if the devisees had aliened the land. In each of the appeals to which reference has been made, however, this court expressed the view that the plaintiffs would be entitled to a personal judgment against the devisees for the value of the interest in the real estate that was devised to them. Evidently counsel for,the plaintiffs was of opinion that that question was still open and he persisted in his view that his clients were entitled to have their claim decreed to be a lien upon and payable out of the award. The learned court properly denied such relief, but on the uncontroverted facts the plaintiffs were entitled to a judgment against the devisees for the value of the interest in the real estate which they received by the devise. It has been held that where the prayer in such action is for a personal judgment and the defendant • has answered, the plaintiff may have judgment enforcible only against the land (Wood v. Wood, 26 Barb. 356), and by virtue of the provisions of section 1207 of the Code of Civil Procedure the plaintiffs here were, we think, entitled to a judgment enforcible against the devisees personally, for that relief may fairly be said to be consistent with the case and embraced within the issues in such an action even though not expressly demanded. There is no specific finding as to the value of the interest in the land devised, but that part of the award which was paid into court to the credit of this action may be regarded as the value of such interest. However, since it appears that it is subject to the lien of the attorneys, which by the other record was shown to be ten per cent, it would seem inequitable to hold the devisees for more than the amount which they actually received as the net proceeds of the land. If they had not aliened the land, the action would necessarily have, been in equity. (Rogers v. Patterson, 79 Hun, 4,83; affd., 150 N. Y. 560 ; Avery v. Avery, 119 App. Div. 698; Wood v. Wood, supra.) If it be not in equity, now that plaintiffs are only entitled to a money judgment, which is by no-means clear under the authorities cited, the fact that the devisees have involunta/rily aliened the land should not deprive them of equitable considerations which they would be entitled to receive had not the city taken the land mi iiwitum, and had they still retained title. Were it not for the claim of said attorneys there would be no necessity for a new tidal, and the proper judgment could be directed .by this court, since the other material facts are established by record proof and show that the plaintiffs are entitled to a sum equal to one-third of the amount of the fund jiaid into court, with accumulations thereon, if any, less the amount, if any, to which the said attorneys are entitled under their said lien, if that amount be necessary to satisfy the plaintiffs’ claim, and if not then to such extent as may be necessary to satisfy it.

We are of opinion, therefore, that the judgment should be reversed and a new trial granted, but without costs, for the reason that the proper relief was not specifically requested.

McLaughlin, Olaeke and Dowling, JJ., concurred; Ingeaham, P. J., dissented.

Ingeaham, P. J. (dissenting) :

The plaintiffs brought this action, not to obtain a money judgment against the defendant to which they would have been entitled under section 1837 of the Code of Civil Procedure, but to impress a lien •upon a fund which was the proceeds of real estate the title to which had been acquired by the city of New York.

We held on a former appeal that the plaintiffs had no lien upon this fund, and were not entitled to a judgment establishing such a lien (112 App. Div. 241; Wendel v. Binninger, 132 id. 785). Upon, the trial the plaintiffs did not ask for a personal judgment, but, notwithstanding the former decisions of this court, insisted upon a judgment establishing a specific lien in their favor upon this fund. The request to find for the plaintiffs specifically requested such a judgment and asked for no personal judgment, and did not ask, if the plaintiffs were entitled to no equitable relief, that the action should be continued so as to allow a recovery of a personal judgment against the individual defendants.

Under these circumstances I think the court was justified in dismissing the complaint, leaving the plaintiffs to commence an action to recover from the individual defendants any sum of money that they had received from the estate of the judgment debtor.

Judgment reversed and new trial ordered, without costs.  