Bacon v. Schlesinger

Page, J.: The plaintiff was retained by Elizabeth Sohlesinger, as administratrix of Mark Sohlesinger, her deceased husband, on September 9, 1911, to represent her upon an accounting of the executors of the estate of Abraham Sohlesinger for the purpose of protecting the rights of the estate of her deceased husband therein, under a written retainer allowing the plaintiff for his [504] services one-third of the amount found due to the estate of Mark Schlesinger under the final decree of the surrogate upon the said accounting. The said final decree was entered March 25, 1913, showing $5,519.35 due from the estate of Abraham Schlesinger to the estate of Mark Schlesinger. This action is brought to enforce the plaintiff’s lien upon the said fund for the amount of his fee, $1,839.78, with interest. The defendant Leo Schlesinger asserts a claim to this fund arising out of a contract in writing entered into between the said Leo Schlesinger and his four brothers, of whom the decedent, Mark Schlesinger, was one, dated June 14, 1907, whereby the said four brothers each agreed in part as follows: “ We do hereby agree that out of the interests in the Estate of Abraham Schlesinger, deceased * * * in which we are entitled to certain shares and interests, we will repay to said Leo Schlesinger the proper amount due to him by said Philip Bear for advances heretofore made, in equal shares of one-quarter each, this agreement to be binding upon us severally and not jointly.” Leo Schlesinger brought an action against Elizabeth • Schlesinger to recover this sum, which amounted to $13,046.34, out of the estate of Mark Schlesinger, and any money which might be due to Mark Schlesinger’s estate from the estate of Abraham Schlesinger, in which action a decree was entered December 19, 1913, directing the executors of Abraham Schlesinger to pay the money due to the Mark Schlesinger estate from Abraham Schlesinger over to Leo Schlesinger in payment on account of said claim. The learned trial justice in the instant case has held that the plaintiff’s lien upon the fund was inferior to that of Leo Schlesinger, and granted judgment for the defendants. I am unable to agree with this conclusion. Unless Leo Schlesinger had a claim which was a valid charge against the share of Mark Schlesinger in his father’s estate at the'time when the plaintiff’s lien attached, his claim is not entitled to priority over the attorney’s lien. It is not sufficient for such claim to be a general debt against the client. It must, in order to supersede the attorney’s lien, be a prior charge against the- specific fund upon which the attorney’s lien has attached. Leo Schlesinger’s claim was merely based upon an agreement of Mark Schles [505] inger to pay a debt out of a particular fund. It was, therefore, not equivalent to an assignment of the fund and gave rise to no equitable lien upon it. (Williams v. Ingersoll, 89 N. Y. 508; Thomas v. N. Y. & G. L. R. Co., 139 id. 163.) In the latter case Andrews,Oh. J., said (at p. 119): “It is the settled doctrine in this State ‘ that an agreement, either by parol or in writing, to pay a debt out of a designated fund, does not give an equitable lien upon the fund, or operate as an equitable assignment thereof.’ [Citing cases.] In Trist v. Child (21 Wall. 441) the court, referring to this subject, said: ‘But a mere agreement to pay out of such fund is not sufficient. Something more is necessary. There must be an [appropriation] of the fund pro tanto, either by giving an order or by transferring it otherwise in such a manner that the holder is authorized to pay the amount directly to the creditor, without the further intervention of the debtor.’ ” (See, also, Addison v. Enoch, 48 App. Div. 111, and Pettibone v. Thomson, 72 Misc. Rep. 486, in which instruments similar to the one here involved were held to create no interest in the fund referred to for payment.) It is clear that the judgment in this action between Leo Schlesinger and Elizabeth Schlesinger having been entered after plaintiff’s lien attached and plaintiff not having been a party to the action, had no effect whatever upon his rights. I am of the opinion that the judgment must be reversed, with costs, and judgment entered for the plaintiff, with costs, declaring his lien upon the fund. Settle order on notice reversing the findings of the court at Special Term which are inconsistent with this opinion and making new findings in accordance herewith. Clarke, P. J., and Scott, J., concurred; McLaughlin and Laughlin, JJ., dissented.