Anderson v. United States Fidelity & Guaranty Co.

238 A.D. 48, 263 N.Y.S. 338, 1933 N.Y. App. Div. LEXIS 9415

Opinions

Townley, J.

This is an application to fix an attorney’s lien under section 475 of the Judiciary Law. The facts are clearly set forth in the dissenting opinion and need not be repeated here.

Under section 475 of the Judiciary Law, a charging hen in favor of an attorney attaches to a verdict, report, decision, judgment or final order in favor of his client on his chent’s cause of action, claim or counterclaim. In the case before us there has been no judgment or final order, verdict, report or decision in the chent’s favor on the bond given by the United States Fidehty and Guaranty Company. Accordingly, no charging hen has attached and Special Term has no power to determine the hen.

In the dissenting opinion great rehance is placed on Matter of Falk (128 Misc. 856). In that case the attorneys had successfully represented one Bond in an action brought against him which resulted in the dismissal of the complaint and the vacating of an order of arrest. Bond recovered a judgment against the National Surety Company upon an undertaking given in that action which included an allowance of $750 for attorneys’ fees. The question presented was whether the attorneys had a hen upon the judgment recovered against the surety company which was superior to that of a receiver in supplementary proceedings appointed upon a judgment recovered against Bond in another action. The justice at Special Term held that the attorneys were equitable assignees of so much of the judgment against the surety company as covered their fees. It is not necessary in the view that we take to pass upon the correctness of that conclusion. The facts in that case were so different from those involved here as to make the decision inapphcable. In that case the judgment was against the surety. In this case there is no judgment against the surety to which the hen could attach. The judgment is against the client. The surety was not vouched in so far as the record shows, and accordingly is not bound by the judgment. (1 Freeman Judgments [5th ed.], § 445, at p. 974.)

The attorneys not having brought themselves within the provisions of the statute creating a charging hen, are not entitled to the rehef demanded.

The order so far as appealed from should be reversed, with twenty dollars costs and disbursements, and the motion denied, with ten dollars costs.

Martin, O'Malley and Sherman, JJ., concur; Merrell, J., dissents and votes for affirmance.