Adams v. . Fox

40 N.Y. 577, 1869 N.Y. LEXIS 60

• Court: New York Court of Appeals
• Decided: March 20, 1869
• Status: Published

Opinions

Mason, J.

The only question presented on this appeal, is from that part of the final judgment reversing the judgment of the Special Term on the demurrer of Peter G. Fox to the plaintiff’s complaint. The Special Term gave judgment for the plaintiff on the demurrer, and which was reversed by the General Term, and the plaintiff then appealed from the order reversing the Special Term and this court dismissed the appeal, holding the order not appealable. (Adams v. Fox, executor, 27 N. Y. R., 640.) The plaintiff then proceeded in the action and procured a judgment against the other defendant, Lawrence M. Fox, and the defendant, Peter G. Fox, executor, having entered a final judgment upon the decision of General Term on the demurrer, with costs adjusted at $101.90, the plaintiff has appealed therefrom to this court, and this presents the only question in this case. The General Term of the Supreme Court held that Peter G. Fox, executor, was not a proper party defendant in the action, and reversed the judgment of the Special Term and gave judgment for defendant, Peter G., upon his demurrer to the complaint. The General Term also held that there was no joint cause of action shown in the complaint against Lawrence M. and Peter G. Fox, or that the complaint showed no cause of action against Peter G. Fox, executor, and that there was no ground shown for making him a defendant. In this, I think, the Supreme Court were clearly in error. I know of no way the plaintiff could obtain the relief which he seeks in this case but by obtaining the judgment of the Supreme Court settling the amount of his claim for costs, and declaring it a lien upon the judgment against Peter G. Fox as executor.

The plaintiff’s complaint seeks just this relief. The plaintiff demands a judgement against L. M Fox for the amount of his bill of costs, for professional services in defending the actions brought by Peter G., and that such judgment against L. M. Fox be decreed an equitable lien upon such judgment against the said Peter G. as executor. And Peter G. was made a party defendant for the obvious reason that he was a proper party to a suit, in which the plaintiff sought a decree, that the said executor pay over to him the amount of the judgment which he should establish against L. M. Fox, upon his claim for professional services, after the same was declared by the court to be a lien upon the said judgment against the said executor.

It was matter of entire indifference to this executor, whether lie paid this judgment to L. M. Fox or to the plaintiff, or whether he paid the plaintiff to the extent of his equitable lien and the balance to L. M. Fox, and, as he stood neutral between them, he should not have interposed any 'defence, or if any, a simple interpleader.

I perceive no difficulty under the Code in seeking the whole relief in this suit. The plaintiff now may unite both legal and equitable causes of action in the same complaint. (Code, § 167; 9 How. Pr. R., 123.) The plaintiff had an attorney’s lien upon this judgment and is entitled to equitable relief to enforce it, where no other adequate remedy exists. (Haight v. Holcom, 16 How. Pr. R., 173; 18 N. Y. R., 368; 15 J. R., 407; 12 Mees. & W., 45.) This judgment of the General Term reversing that of the Special Term, and giving judgment for the defendant Peter G. Fox, upon his demurrer to the plaintiff’s complaint, should be reversed and the judgment of the Special Term affirmed with costs.