
    William B. Tullis, Respondent, against Chester Bushnell et al., Appellants.
    (Decided June 25th, 1883.)
    Where an action is settled by the parties to it, without payment of compensation to the plaintiff’s attorney, there being at the time no verdict, report, decision or judgment to which his lien may attach, he cannot maintain ah action against the parties to the original action, on the ground that by such settlement his lien upon the cause of action has been destroyed; his remedy is, with leave of the court, to prosecute the original action to establish his lien, which he may do, under section 66 of the Code of Civil Procedure, without showing that the settlement was fraudulent as to him.
    Appeal from a judgment of this court entered upon the verdict of a .jury and from an order denying a motion for a new trial.
    The plaintiff who was an attorney and counselor at law, had been the attorney for Chester Bushnell, who was one of the defendants in this action, in a former action brought by Bushnell against the other defendants in this action, which former action was settled by the parties, without making payment to the plaintiff herein of his compensation as the attorney for plaintiff in that action; whereupon he brought this suit against all the parties to the former action to recover from them damages for such settlement. Demurrers to his complaint were overruled, and on appeal to the General Term the decision of the Special Term overruling the demurrers was affirmed. Answers to the complaint were served by all the defendants, pursuant to leave granted on overruling the demurrers, and at the trial thereon, the jury found a verdict for plaintiff, and a motion by the defendants for a new trial was denied. From the judgment for plaintiff entered on the verdict and the order denying the motion for a new trial, defendants appealed to the General Term.
    
      
      Nenry L. Clinton, for ajipellants.
    
      William B. Tullis, in person, respondent.
   Van Brunt, J.

I do not see upon what principle the judgment in this action can be sustained.

Prior to the adoption of section 66 of the Code of Civil Procedure, an attorney had a lien for his costs and charges upon the papers, deeds and other evidences of debt in his hands belonging to his client, and also upon any money which he might have collected at his client’s request, but he had no lien or interest whatever in the cause of action by reason of his employment to prosecute the same.

After judgment the attorney had a lien thereon to the extent of his costs, and for such further sum as the client had promised to pay him out of the judgment as compensation for his services (Wright v. Wright, 70 N. Y. 96; Coughlin v. The New York Central &c. R. R. Co., 71 N. Y. 443).

Before judgment the parties to an action had a rjght to settle the same on- such terms as they might agree upon, without consulting with the attorney to the record, provided they acted in good faith and had no intention to cheat or defraud the attorney out of his costs; but if the settlement was entered into with such view, then the court, upon the application of the attorney, would interfere and make inquiry into the circumstances of the settlement, and if found to be fraudulent would set the same aside so far as to allow the suit to proceed for the purpose of collecting the attorney’s costs (Tallcott v. Bronson, 4 Paige 501).

Section 66 of the Code of Civil Procedure extends the attorney’s lien to the client’s cause of action, which lien attaches to the verdict, report, decision or judgment in his client’s favor, and the proceeds thereof, in whosesoever hands they may come, and cannot be affected by any settlement by the parties before or after judgment.

In the case at bar, there having been no verdict, report, decision or judgment in favor of the plaintiff at the time of the settlement, the lien is still confined to the original cause of action which has been placed in his hands for collection.

I cannot see but that the attorney must take precisely the same steps to establish his lien, by a continuance of the action notwithstanding the settlement, under the 66th section of the Code, as was decided to be the practice prior'to the adoption of that section in respect to an attorney’s lien for costs: namely, that if the settlement is in fraud of his lien, the court will grant leave to the attorney to prosecute the action for the purposes of determining his right to a recovery as against the defendant in the action, and for the purpose of establishing his lien upon the subject matter of the action. The only difference which the 66th section, perhaps, may have made in the position of the attorney, is that he is not, under section 66, required to show that the settlement was a fraud upon him, as he was, prior to the adoption of that section, required to do, but that the leave to prosecute the action should be granted if the settlement inequitably affected his lien upon the cause of action. This seems to have been the rule which was recognized in the cases of Pickard v. Yencer (21 Hun 483); Goddard v. Trenbath (24 Hun 182) ; Wilber v. Baker (24 Hun 24) ; Jenkins v. Adams (22 Hun 600), and Dimick v. Cooley (3 N. Y. Civ. Pro. 141).

It is true that the General Term of this court has decided that the complaint of the plaintiff was sufficient; but the allegations contained in the complaint were not entirely sustained upon the trial. There was no proof in the case as alleged in the complaint that any lien of the plaintiff in this action was destroyed by the settlement in question, for the reason that there was no proof by his having proceeded to judgment that any lien actually existed.

I am of the opinion, therefore, that no cause of action was shown upon the evidence, and the motion to dismiss the complaint should have been granted.

The judgment appealed from should therefore be reversed and a new trial ordered, with costs to the appellant to abide the event.

Beach, J.—I concur.

Van Hoesen, J.—I concur in the result.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  