Bernstein v. Traverso

Page, J. The appellants as attorneys for Benjamin Bernstein brought an action against the respondent for breach of an agreement to give a lease. The respondent, as defendant in the said action, tendered to the plaintiff a return of fifty dollars which he had paid as earnest money and denied the agreement. On the plaintiff’s refusal to accept the fifty dollars it was paid into court for the purpose of keeping the tender good and was deposited with the city chamberlain. Upon the trial of the action the complaint was dismissed with costs and a judgment was entered in favor of the respondent against the plaintiff for seventy dollars and eighty-eight cents costs. [413] The defendant issued execution upon the judgment and obtained an order for the examination of the plaintiff in supplementary proceedings in aid of execution. Upon the examination had pursuant to this order the plaintiff Bernstein testified that he had fifty dollars on deposit with the city chamberlain, which was the money paid into court by the defendant, and that he had made an agreement with his attorneys, Morris and Samuel Meyers, to pay to them for their services in prosecuting the action, “ a sum equal to 50 per cent, of the. amount recovered or the amount obtained by way of compromise, settlement or otherwise.” Upon this testimony the learned justice at special term granted an order directing the city chamberlain to pay the money in his hands to the sheriff to be applied upon execution upon the defendant’s judgment. It is recited in this order that it was granted “ after hearing Samuel Meyers, Esq., in support of the claim of said attorneys to an alleged Hen for services rendered * * * based upon a written agreement and having duly determined that the said attorneys were and are not entitled to any such claim or lien.” It is not disputed, however, that no notice of motion to determine the lien of the appellants upon the fund in question was given and Samuel Meyers was only present in court upon the day of the examination and order in question, because the defendant’s attorney notified him by telephone on the morning of the hearing to come to the court, without telling him what the nature of the hearing was to be. Furthermore, it is not disputed that the appellant objected to a summary adjudication of his lien without notice. The order appealed from was not, therefore, an order granted upon notice in a contested motion to determine an attorney’s lien, but merely a summary order in supplementary proceedings pursuant to section 2447 of the Code of [414] Civil Procedure. It is well settled that: “ Such an order can be made, however, only when the judgment debtor’s right to the possession of the money or property is not substantially disputed. If there is a real controversy in this respect it cannot be settled in supplementary proceedings, but must await determination in an appropriate action.” Kenney v. South Shore Natural Gas & F. Co., 201 N. Y. 89, 92. The right of the debtor to the money in the hands of the city chamberlain was disputed by his attorneys who claimed a lien thereon for the amount of their services. As soon as the money was paid into court by the defendant it became the property of the plaintiff irrevocably regardless of what the final outcome of the action might be. The plaintiff could have drawn it out at any time and had it been lost or stolen the loss would have fallen upon him and not upon the defendant. Taylor v. Brooklyn E. R. Co., 119 N. Y. 561; Mann v. Sprout, 185 id. 109. In the latter case it is said at page 111, “ not only does the party paying it into court lose all right to it, but the court itself has no power to make an order in the same action, which, in effect, retransfers the title.” The lien of the appellants as attorneys for the plaintiff attached to the money as soon as it was paid into court and this lien was not disturbed by the subsequent judgment for costs. ■ The order appealed from was accordingly improperly granted and must be reversed, with ten dollars costs and disbursements. Lehman and Whitaker, JJ., concur. Order reversed, with ten dollars costs and disbursements.