
    In the Matter of the Application of the City of New York Relative to Acquiring Title, etc., for the Purpose of Opening Fourteenth Street from Broadway to Mitchell Avenue, etc. Application of Frank Dickerson to Compel Payment of the Award for Damage Parcel No. 39A. Frank Dickerson, Appellant; Joseph A. Flannery, Respondent.
    Second Department,
    October 24, 1913.
    Attorney and client — attorney’s lien— awards on street opening.
    An order postponing the payment of an award made to property owners in a proceeding for the opening of a street and a change of grade cannot be made on motion of an attorney where his retainer was in proceedings other than those in which the award was made.
    Nor should such order be made where the relation of attorney and client did not exist between the parties, for no one except an attorney can assert a lien, and said relationship is the foundation of the right.
    An attorney may assert a lien against his client’s claim but not against the claim of another.
    Appeal by Frank Dickerson from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Queens on the 25th day of March, 1913, denying his motion for an order to compel the payment of an award.
    
      Philip B. La Roche, Jr., for the appellant.
    
      Benjamin Trapnell, for the respondent.
   Stapleton, J.:

The appellant moved, under section 1001 of the Greater New York charter (Laws of 1901, chap. 466, as amd. by Laws of 1906, chap. 658), for an order directing the comptroller of the city of New York to pay an award of $500 made to him in the above-entitled proceeding. The respondent intervened and claimed an attorney’s lien attaching to the award.

The respondent obtained the order from which the appeal is taken, the effect of which order was to postpone the payment of the award, concededly the property of the appellant, until the reasonable value of the respondent’s services should be ascertained. The order determines that the respondent has a lien upon the award, for services as an attorney, in an amount to be thus ascertained.

The respondent procured from one Ellen Fenton the following written retainer:

“Matter of Change of Grade of 14th Street, Flushing.
“New York, July 23, 1908.
“I hereby retain Joseph A. Flannery, Attorney, to represent me in the above proceedings. For his services I agree to pay and assign to -said Flannery 25 per cent, of whatever award and interest may be recovered for my said damages.
“Block 262 Name Ellen Fenton,
Lot 9-10 Address 89 14th St.
Property Flushing, L. I.
Witness Ernest M. Fenton.”

The appellant, in his brief, gives the following chronological summary, which correctly shows the various facts established by the affidavits with relation to the time of their occurrence:

January 12, 1906. During appellant’s ownership of the premises, publication of notice of application for commissioners of estimate and assessment.
January 24, 1906. Commissioners appointed.
May 29, 1906. Order appointing commissioners entered.
July 19, 1906. First meeting of commissioners.
September 14, 1906. Commissioners adjourned sine die.
March 1, 1907. Appellant conveyed premises to Fenton, taking hack a purchase-money mortgage for $4,500.
July 23, 1908. Fenton signed above written retainer.
December 21, 1908. Respondent filed a notice of appearance for Fenton.
January 11, 1909. Commissioners reconvened.
January 14, 1909. Respondent “received a written report from William M. Dean, real estate broker and appraiser, in respect of the damages sustained by ” Fenton.
January 18, 1909. The attention of the commissioners having been called to the fact that the city intended to modify the grade adopted for this street by conforming the same to the natural surface grade thereof, the commissioners adjourned sine die to await establishment of the new grade by the municipal authorities.
June 25, 1909. Reference ordered in proceedings to disbar respondent.
April 11, 1910. Appellant’s attorney writes letter.
March , 1911. Fenton defaulted on payment of interest on appellant’s mortgage.
April 10, 1911. Fenton made, acknowledged and delivered to appellant, to avoid foreclosure, a full covenant and warranty deed.
May 1, 1911. Appellant’s attorney leaves employ of respondent.
June, 1911 (early part). Appellant requested his attorney to take charge of his interests in the street opening proceeding.
June 2,1911. Amended grade map received by commissioners.
June 15, 1911. Commissioners reconvened. Respondent appeared before the commissioners by one Doran, an attorney employed by him, and William M. Dean testified to damages of $1,500 on Fenton’s claim.
June 23, 1911. Appellant signs formal authorization for his attorney to appear for him in the street opening proceeding. Deed Fenton to appellant recorded. Clerk of commission reports receipt of notice of appearance by appellant’s attorney for appellant.
June 30, 1911. Appellant’s attorney cross-examines city’s witness Allen. Examines witness Henry Rath.
July 11, 1911. Appellant’s attorney cross-examines Allen.
July 17, 1911. Appellant’s attorney proves appellant’s title and date of erection of building.
July 20, 1911. Cross-examination of Allen by appellant’s attorney continued.
July 26, 1911. Appellant’s attorney submits memo, and argues in support of appellant’s claim before commissioners.
May 17, 1912. Decision handed down against respondent in disbarment proceedings and report of referee therein confirmed.
June 25, 1912. Order disbarring respondent entered.
June 26, 1912. Preliminary report of commissioners advertised for obj ections. Thereafter commissioners hear obj ections, go into executive session and prepare their final report.
November 26, 1912. Final report of commissioners confirmed.
December 11, 1912. Respondent files notice of lien with comptroller.
January 13, 1913. Comptroller ready to pay award to appellant, but refuses because of respondent’s notice of lien.

Analysis of the facts shows: (1) That the retainer was in a proceeding other than the one in which the award was made and the order granted, and cognizable in a different tribunal (Greater New York Charter [Laws of 1897, chap. 378; Laws of 1901, chap. 466], chap. 17, tit. 2, §§ 951, 953, tit. 4, §§ 979, 980, as amd. by Laws of 1909, chap. 394, §§ 2, 3); (2) that the relation of attorney and client did not exist between appellant and respondent. None except an attorney can assert a lien. The statute so reads. The relationship is the foundation of the right. An attorney can assert a lien against his client’s claim, but not against the claim of another. - (Judiciary Law [Consol. Laws, chap. 30; Laws of 1909, chap. 35], § 475. See Matter of Niagara, L. & O. Power Co., 203 N. Y. 493.)

As the order cannot survive these objections to its validity, we refrain from adverting to other fatal difficulties in the way of its affirmance which occur to us, but which we do not deem it necessary to discuss.

The order should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

Carr, Rich and Putnam, JJ., concurred; Jenks, P. J., not voting.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.  