Bollar v. Schoenwirt

New York Supreme Court

Bollar v. Schoenwirt

30 Misc. 224, 63 N.Y.S. 311

DecidedJanuary 15, 1900

StatusPublished

This text of 30 Misc. 224 (Bollar v. Schoenwirt) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bollar v. Schoenwirt, 30 Misc. 224, 63 N.Y.S. 311 (N.Y. Super. Ct. 1900).

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Opinion

Gildersleeve, J.

This is a motion to set aside the satisfaction of a judgment entered in favor of the plaintiff against the defendant. It appears that the plaintiff and her attorney, Mr. Eugene I. Yuells, entered into an agreement about the time the action was commenced to the effect that the attorney should have a lien on the cause of action for his compensation to the extent of fifty ■dollars and his taxable costs. The case went to trial, and the plaintiff recovered a judgment against the defendant in said action. Execution was issued and returned unsatisfied. Supplementary proceedings were instituted and property of the defendant was discovered. Thereupon the defendant settled with the plaintiff without the knowledge of said attorney, and plaintiff executed a satisfaction piece of said judgment. The said attorney appears to have received.no compensation, and the plaintiff, according to the uncontradicted affidavit of the said attorney, is wholly irresponsible and unable to pay said attorney. The attorney, therefore, makes this motion to set aside the satisfaction piece. It is well settled that, under section 66 of the Code, the lien attaching to the cause of action and to the judgment in the [225]*225attorney’s favor cannot be impaired or destroyed by collusion or fraud; and in cases where this is made to appear the court has undoubted power, and will exercise it to set aside a judgment, if such has been procured in the action, to the end that an attorney may proceed and enforce the lien or claim upon the cause ■of action. Hart v. Mayor, 23 N. Y. Supp. 555. A release of the judgment cannot affect the lien of the attorney, and if a release has the effect to defraud the attorney, the court should set it aside in order to protect the lien, where it is necessary to the protection of the attorney. Poole v. Belcha, 131 N. Y. 200. Here the plaintiff is irresponsible and the attorney would gain nothing by suing her. He is, therefore, dependent upon his lien. I think the satisfaction piece should be vacated to the extent of the attorney’s lien, so as to enable him to enforce the judgment against the defendant to the extent indicated. Ho costs of motion.

Ordered accordingly.

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Gildersleeve, J.

This is a motion to set aside the satisfaction of a judgment entered in favor of the plaintiff against the defendant. It appears that the plaintiff and her attorney, Mr. Eugene I. Yuells, entered into an agreement about the time the action was commenced to the effect that the attorney should have a lien on the cause of action for his compensation to the extent of fifty ■dollars and his taxable costs. The case went to trial, and the plaintiff recovered a judgment against the defendant in said action. Execution was issued and returned unsatisfied. Supplementary proceedings were instituted and property of the defendant was discovered. Thereupon the defendant settled with the plaintiff without the knowledge of said attorney, and plaintiff executed a satisfaction piece of said judgment. The said attorney appears to have received.no compensation, and the plaintiff, according to the uncontradicted affidavit of the said attorney, is wholly irresponsible and unable to pay said attorney. The attorney, therefore, makes this motion to set aside the satisfaction piece. It is well settled that, under section 66 of the Code, the lien attaching to the cause of action and to the judgment in the [225]*225attorney’s favor cannot be impaired or destroyed by collusion or fraud; and in cases where this is made to appear the court has undoubted power, and will exercise it to set aside a judgment, if such has been procured in the action, to the end that an attorney may proceed and enforce the lien or claim upon the cause ■of action. Hart v. Mayor, 23 N. Y. Supp. 555. A release of the judgment cannot affect the lien of the attorney, and if a release has the effect to defraud the attorney, the court should set it aside in order to protect the lien, where it is necessary to the protection of the attorney. Poole v. Belcha, 131 N. Y. 200. Here the plaintiff is irresponsible and the attorney would gain nothing by suing her. He is, therefore, dependent upon his lien. I think the satisfaction piece should be vacated to the extent of the attorney’s lien, so as to enable him to enforce the judgment against the defendant to the extent indicated. Ho costs of motion.

Ordered accordingly.

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Bluebook (online)

30 Misc. 224, 63 N.Y.S. 311, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bollar-v-schoenwirt-nysupct-1900.

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