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Keeler v. Keeler

Keeler v. Keeler, 4 N.Y.S. 580 (N.Y. Sup. Ct. 1889)

Court: New York Supreme Court · State Trial Courts
Decided: February 7, 1889
Judges: Landon
Citations: 4 N.Y.S. 58058 N.Y. Sup. Ct. 50521 N.Y. St. Rep. 66651 Hun 5051889 N.Y. Misc. LEXIS 1609

Cited by 8

Headnotes

Attorney and Client—Lien—Settlement by Parties. Code Civil Proc. N. Y. § 66, provides that the amount of an attorney’s lien on his client’s cause of action is governed by agreement, and is not restrained by law, and that the lien attaches on the service of the first pleading, and cannot be affected by any settlement between the parties before or after judgment. Held, where a cause of action was settled by the parties after the service of the complaint, and before answer, that plaintiff's attorney could continue the action, and recover the amount of his lien, though defendant had no notice of it.1

Summary

Appeal from Albany county court. Action by Daniel Keeler against .Mary Keeler. The plaintiff, by Doyle & Kitts, his attorneys, commenced this action in favor of the plaintiff to recover for services rendered the defendant. The attorneys made an agreement with the plaintiff that for their services they should have one-half of the recovery and all the taxable costs. After they served the complaint, and before answer, the parties, without notice to plaintiff’s attorneys, settled the cause of action for $300, which sum the defendant paid the plaintiff. The defendant had no notice of the agreement between the plaintiff and his attorneys. The defendant afterwards answered, and alleged the settlement and payment in defense. The plaintiff did not pay his attorneys. The case came on for trial, and, on proof of the above facts, the defendant asked the court to rule that the recovery be limited to the taxable costs; that the lien of the attorneys could not be enforced without first obtaining leave of the court; that the defendant be permitted to go to the jury upon the question whether the settlement was made in good faith. These several requests were refused, and the court directed a verdict in favor of the plaintiff for $150, and the defendant appeals.

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Opinion of the Court — Landon

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Landon, J.

Section 66 of the Code of Civil Procedure is explicit in regard to the lien of an attorney upon his client’s cause of action for his services. The amount of it “is governed by agreement, express or implied, which is not restrained by law.” It attaches upon the service of the first pleading, “and cannot be affected by any settlement between the parties before or after judgment.” Ho notice of the lien need be given to the adverse party. The statute makes the lien complete. Payment in settlement of the cause of action to the party himself, without notice to the lienor, and without affording him an opportunity of protection, unless he has waived his rights, cannot prejudice him. A right so fully and completely vested must necessarily draw to itself a remedy adequate to its enforcement.

The simplest remedy, in the case of the attorney for the plaintiff, where the parties settle before trial, is to permit him to continue the action, and recover so much upon his client’s cause of action, as it existed before settlement, as equals the amount of the lien. Such was the course here pursued, and is sanctioned by authority. Coster v. Ferry Co., 5 Civ. Proc. R. 146 , 98 N. Y. 660 ; Wilber v. Baker, 24 Hun, 24 ; Forstman v. Schulting, 35 Hun, 504 ; Pickard v. Yencer, 10 Wkly. Dig. 271 ; Albert Palmer Co. v. Van Orden, 64 How. Pr. 79 . There are cases the other way, but, if we are right in supposing that the case first cited has been affirmed by the court of appeals, they cannot control the question here presented. Judgment affirmed, with costs. All concur.

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Cited by 8 cases

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Relies on it most ⓘ

Washburn v. Mott34 N.Y. St. Rep. 145 (N.Y. Sup. Ct. 1890)
Taylor v. St. Louis Transit Co.97 S.W. 155 (Mo. 1906)
Dienst v. McCaffrey32 N.Y.S. 818 (1895)
Washburn v. Mott12 N.Y.S. 111 (1890)
Howitt v. Merrill2 Silv. Ct. App. 158 (1889)
Astrand v. Brooklyn Heights Railroad24 Misc. 92 (N.Y. Sup. Ct. 1898)

Most recent

Taylor v. St. Louis Transit Co.97 S.W. 155 (Mo. 1906)
Astrand v. Brooklyn Heights Railroad24 Misc. 92 (N.Y. Sup. Ct. 1898)
Dienst v. McCaffrey32 N.Y.S. 818 (1895)
Casucci v. Alleghany & Kinzua Railroad20 N.Y.S. 343 (N.Y. Sup. Ct. 1892)
Washburn v. Mott12 N.Y.S. 111 (1890)
Washburn v. Mott34 N.Y. St. Rep. 145 (N.Y. Sup. Ct. 1890)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 2

Depth	Case	Cited by
	Albert Palmer Co. v. Van Orden, 64 How. Pr. 79 (1882)	7
	Custer v. Greenpoint Ferry Co., 98 N.Y. 660 (1885)	5