Oliwill v. Verdenhalven

Per Curiam. The only issues before the court at the time of the trial were whether the plaintiff had a cause of action, and whether it had been legally discharged by release. Indeed, the main question was as to the release, and, no fraud or imposition having been established, it was conclusive against the plaintiff, and her complaint ought to have been dismissed. Whether or not the plaintiff’s attorney had a lien, its nature or amount, was not before the court for adjudication. The issue was one of accord and satisfaction. If the plaintiff’s attorney, for the preservation of his lien, desired to avoid this defense, he should, immediately after the plea of settlement was interposed, have applied for leave to prosecute the action for his own benefit, and at his own risk and cost. Dimick v. Cooley, 3 Civ. Proc. R. 141; Quinlan v. Birge, 43 Hun, 483; Smith v. Baum, 67 How. Pr. 267; Tullis v. Bushnell, 65 How. Pr. 465; Murray v. Jibson, 22 Hun, 386; Stahl v. Wadsworth, 13 Civ. Proc. R. 32. And see Coster v. Ferry Co., 5 Civ. Proc. R. 147; Lablache v. Kirkpatrick, 8 Civ. Proc. R. 256; Kipp v. Rapp, 7 Civ. Proc. R. 385; Ackerman v. Ackerman, 14 Abb. Pr. 229; Chase v. Chase, 29 Hun, 527; Eberhardt v. Schuster, 10 Abb. N. C. 393, 395, note; McBratney v. Railroad Co., 87 N. Y. 467. The order might have provided for a supplemental -complaint, giving the nature and amount of the lien claimed; and the defendant, by his plea, might have created an intelligent issue for the trial judge to determine, with or without the aid of a jury, as the parties might determine. But no such application was made; no leave was obtained to prosecute in aid of the lien; no issue in respect thereto was created; and the trial judge had no right to enter upon the trial of any such claim. But, in addition to this, the plaintiff’s attorney had no lien at the time of the trial, and it was useless to undertake to ascertain the nature or amount of a thing having no legal existence. The cause of action was for personal injuries, and was not assignable; s.o that the plaintiff could not, by any arrangement with her lawyer, transfer any part of the cause of action to him as against the defendant. Coughlin v. Railroad Co., 71 N. Y. 443. In the-event of a recovery and subsequent satisfaction, the agreement, however, might have been good as between the attorney and client for the purpose of fixing as between them the amount of the attorney’s compensation, (Code, § 66;) but as against the defendant, prior to judgment, the arrangement, even 101 followed by notice, imposed upon him no legal obligation. If the cause of action had been of an assignable character this rule would not have been applicable. . Upon the motion for leave to interpose the supplemental answer pleading the release in bar, the plaintiff’s attorney received all of his taxable costs up to that time; and this, upon an unassignable cause of action, was all he was entitled to recover against the defendant prior to judgment, when the cause of action for the first time assumes the form of a contract of record. Section 66 of the Code protects the legal lien of the attorney upon the cause of action. This presumptively is measured by the amount of his taxable costs. If he claims a lien for a greater amount, he must protect it by notice. If the cause of action is unassignable the notice that part of it has been assigned must be held to amount to this: that the attorney holds an agreement which, as against the defendant, gives him no rights, and imposes on the latter no liabilities. The law does not discourage settlements in negligence cases or in those involving personal controversies. Cahill v. Cahill, 9 Civ Proc. R. 241. Whether a legal obligation exists, as well as its nature and amount, are all matters of uncertainty; and if a defendant can buy his peace for a reasonable amount he should not be prevented from doing so. In such cases the plaintiff and defendant may come together and make terms, and the only risk the defendant runs is being obliged to pay the taxable costs,—a duty he is generally willing to perform. If the plaintiff breaks faith with his attorney, he, like other people, must seek redress from the defaulting party to the obligation. He should not be allowed to stand between two litigants and tell them to fight, when they have settled their grievances and do not want to fight. For the reasons stated, it follows that the judgment rendered cannot stand, and that the order made by the trial judge after the verdict, for ascertaining the amount of the attorney’s lien, does not assist us in sustaining the recovery. The judgment appealed from will therefore be reversed, and a new trial ordered, with costs to the appellant to abide the event.