Pomeranz v. Marcus

Gaynor, J.: The defendant’s attorney asks leave to try the action for the purpose of getting judgment for costs against the plaintiff, in order to get paid in that way for his services. The papers reveal that this defendant also had an action pending against this plaintiff, and that the parties met and settled both actions by the payment of $200 by this plaintiff to this defendant, and the exchange of general releases. The parties had the right to settle their cases; and it follows from the right of .the parties to settle an action that neither nor both of the attorneys can keep it going and try it in spite of the parties. Not even the plaintiff can do that to enforce his lien on the cause of action; his lien is subordinate to the right of the parties to settle, and it is necessarily gone when the action is settled (Zimmer v. Metropolitan St. R. Co., 32 Misc. Rep. 262; Dolliver v. American Swan Boat Co., id. 264; Fenwick v. Mitchell, 34 id. 617). Motion denied.