Neier v. Droesch Realty Corp.

Per Curiam. The facts are without material dispute. The single question involved is whether petitioner by his own acts, conduct or omissions has lost his hen upon the judgments in the above-entitled action. The evidence satisfies us that the respondent, through its attorney, was not justified in paying the judgments to the plaintiff Neier personally, and that in so doing, without the knowledge or consent of the plaintiff’s attorney, it paid the judgments at its own risk and peril, and did not thereby discharge or satisfy the petitioner’s hen, which is in full force and effect and for the recovery of which the petitioner is entitled to vacate the satisfactions of the judgments and to issue execution for the enforcement of the judgments to the extent of the petitioner’s hen. (Peri v. New York Central R. R. Co., 152 N. Y. 521.) We may add that there was neither misconduct nor neglect by the petitioner, and the payment of the judgments was not in our opinion in good faith. As to other actions in which petitioner was attorney for Neier, we hold that the value of the services therein rendered [535] may not be included in the charging hen sought to be here enforced. (Matter of Heinsheimer, 214 N. Y. 361, 365; Weinstein v. Seidmann, 173 App. Div. 219, 220.) The order denying petitioner’s motion to reject the report of the official referee and to grant the relief asked for in the petition, and the order confirming said report and dismissing the petition, should be reversed upon the law and the facts, with costs, and the motion granted to the extent of the hen found by the official referee to have attached to the judgments for the petitioner’s services in the action of Neier against Droesch Realty Corporation. Lazansky, P. J., Kapper, Hagarty, Carswell and Davis, JJ., concur. Order denying motion to reject report of official referee and to grant the relief asked for in the petition, and order confirming said report and dismissing the petition, reversed upon the law and the facts, with costs, and motion granted to the extent of the hen found by the official referee to have attached to the judgments for the petitioner’s services in the action of Neier against Droesch Realty Corporation. Findings of fact and conclusions of law inconsistent herewith are reversed and new findings and appropriate conclusions will be made. Settle order on notice.