Davis, P. J.:
In an action between these same parties, lately decided, we held that the questions touching an attorney’s hen, and his rights under an equitable assignment for tbe payment of bis costs and compensation, might be beard and determined upon petition and reference, as was done in tbis case. That question is no longer an open one in tbis court. (Rooney v. Second Av. R. R. Co., 18 N. Y., 368; McGregor v. Comstock, 28 id., 231; 3 id., 211; Richardson v. R. R. Co., 7 Hun, 69; opinion of Davis, P. J., in Brown v. The Mayor, 9 Hun, 581.)
No objections were taken to any portion of tbe testimony of Devlin and Trull, who were called as witnesses on behalf of tbe claimants, on tbe ground of tbeir incompetency to testify to transactions bad with John L. Brown, tbe testator of tbe plaintiffs, in tbe above entitled action. Some parts of tbeir testimony were, doubtless, obnoxious to sucb an objection, but by far tbe greater part was not. After tbe bearing before tbe referee was closed, motions were made by tbe appellants’ counsel to strike out tbe whole of tbe testimony of each of these witnesses, on tbe ground of tbeir incompeteney to testify to communications and transactions bad with tbe deceased. These motions were denied by tbe referee. His decision was correct for two reasons : First. Tbe motions came too late, not having been made till after tbe bearing was closed. Second. Tbe motions asked for too much. They should have pointed out tbe objectionable testimony, and not asked to have tbe whole of tbe [24] evidence stricken out because some portions of it were incompetent.
When the testimony of Mr. Devlin was closed on his own behalf, his cross-examination was reserved by the appellants. He was afterwards called again on behalf of the claimants, but was not then cross-examined.
It does not appear affirmatively in the evidence what afterwards took place, in respect of his production by the claimants for the purpose of cross-examination, but it does appear that after the appellants had taken the case, and called and examined some witnesses, they required that Mr. Devlin should be produced for cross-examination before they went further with their side of the case. The counsel for the claimants stated that Mr. Devlin had already been twice produced f0r cross-examination, and that the counsel who then appeared for appellants had declined to cross-examine him; that he was then in ill health at Richfield Springs, about 300 miles from New York, and the counsel refused to produce him. The counsel for appellants stated that the claimants’ counsel was mistaken about the waiver of cross-examination, and offered to postpone the hearing till Mr. Devlin could be produced on Ms return to town, to which the counsel for claimants replied that they had discharged their whole duty in the matter, and should not produce Mr. Devlin for cross-examination then or at any other time. The appellants’ counsel refused to proceed with their case, and objected that they should not be required to go on till Mr. Devlin should be produced. The referee, in substance, overruled the objection, and held that the case should proceed. In his report, the referee states that Mi'. Devlin had been twice produced for cross-examination, and that the’ counsel then present for appellants had declined to cross-examine him.
We must take this statement of the referee as true, because there is nothing in the papers before us to contradict it. The mere absence of a statement of the fact in the minutes does not have that effect. The exception based on the refusal to produce Mr. Devlin for cross-examination was properly overruled by the Special Term. Under the circumstances, as they are stated by the referee, the obligation to produce Mm had ceased, and it was the duty of the appellants, if they wished to examine him, either by way of cross-examination or directly, to subpoena and produce him themselves.
[25] The law of this State in respect of the lien of an attorney for costs seems to be well settled. Aside from the specific lien on deeds, papers and valuables in his hands as attorney, and which may be held for any general indebtedness for services (the extent of which lien is not now under discussion), an attorney has a lien for his costs in an action prosecuted by him, upon the recovery of a judgment. This formerly extended only to the taxable costs which were the legal measure of his compensation, but under the Code, which authorizes express or implied agreements between attorney and ehent as to such compensation, it embraces any amount expressly or impliedly agreed upon, as well as such part of the taxable costs and disbursements as may belong to him. (Rooney v. Second Av. R. R., 18 N. Y., 368; Sherwood v. Buffalo and W. Y. R. R. Co., 12 How., 136; Haight v. Holcomb, 16 id., 173; Pinder v. Morris, 3 Caines, 165 ; Bradt v. Koon, 4 Cow., 416; Howland v. Taylor, 6 Hun, 237. Bartle v. Gilman, 18 N. Y., 260 ; Moore v. Westervelt, 3 Sanford, 762.) But until there be a recovery of judgment no hen arises. (Pulver v. Harris, 52 N. Y., 73 ; Martin v. Hawks, 15 Johns., 405; Shank v. Shoemaker, 18 N. Y., 489; Foot v. Tewksbury, 2 Vt., 97; 1 Wait’s Actions and Defenses, 454.)
In St. John v. Diefendorf (12 Wend., 261), the question was, whether an attorney had a hen upon the damages recovered in a judgment to satisfy a demand against his chent for costs in other suits, and the court held, as Savage, Oh. J., tersely expressed it, that “ there can be no hen upon what belongs to. another, without possession.”
'In this case, the learned referee erred in holding that the claimants had any hen upon the moneys paid, or to be paid, on the settlement beyond the amount they were entitled to for their costs and compensation in the case in which they had recovered judgment. In one case, that is in the action upon the First avenue contract, it appears that the judgment had been recovered on the trial before a referee, which was reversed on appeal, and a new trial ordered, and that on such new trial a judgment for upwards of $35,000 was recovered, from which an appeal had been taken, and was pending when a compromise with the city was made. It is understood by us that that judgment was embraced in the compromise. If that be so, the claimants had a lien for their costs and compensation [26] upon so much of the moneys as were paid to effect tbe compromise of tbat judgment.
Tbe referee bas found tbat they were entitled to tbe amount of tbe costs as adjusted, and $5,000 for tbeir compensation in tbat case. There was no conflicting evidence as to these amounts, and, on tbe assumption tbat tbe compromise included tbat judgment, there seems to be no good reason why tbe lien may not be upheld.
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Davis, P. J.:
In an action between these same parties, lately decided, we held that the questions touching an attorney’s hen, and his rights under an equitable assignment for tbe payment of bis costs and compensation, might be beard and determined upon petition and reference, as was done in tbis case. That question is no longer an open one in tbis court. (Rooney v. Second Av. R. R. Co., 18 N. Y., 368; McGregor v. Comstock, 28 id., 231; 3 id., 211; Richardson v. R. R. Co., 7 Hun, 69; opinion of Davis, P. J., in Brown v. The Mayor, 9 Hun, 581.)
No objections were taken to any portion of tbe testimony of Devlin and Trull, who were called as witnesses on behalf of tbe claimants, on tbe ground of tbeir incompetency to testify to transactions bad with John L. Brown, tbe testator of tbe plaintiffs, in tbe above entitled action. Some parts of tbeir testimony were, doubtless, obnoxious to sucb an objection, but by far tbe greater part was not. After tbe bearing before tbe referee was closed, motions were made by tbe appellants’ counsel to strike out tbe whole of tbe testimony of each of these witnesses, on tbe ground of tbeir incompeteney to testify to communications and transactions bad with tbe deceased. These motions were denied by tbe referee. His decision was correct for two reasons : First. Tbe motions came too late, not having been made till after tbe bearing was closed. Second. Tbe motions asked for too much. They should have pointed out tbe objectionable testimony, and not asked to have tbe whole of tbe [24] evidence stricken out because some portions of it were incompetent.
When the testimony of Mr. Devlin was closed on his own behalf, his cross-examination was reserved by the appellants. He was afterwards called again on behalf of the claimants, but was not then cross-examined.
It does not appear affirmatively in the evidence what afterwards took place, in respect of his production by the claimants for the purpose of cross-examination, but it does appear that after the appellants had taken the case, and called and examined some witnesses, they required that Mr. Devlin should be produced for cross-examination before they went further with their side of the case. The counsel for the claimants stated that Mr. Devlin had already been twice produced f0r cross-examination, and that the counsel who then appeared for appellants had declined to cross-examine him; that he was then in ill health at Richfield Springs, about 300 miles from New York, and the counsel refused to produce him. The counsel for appellants stated that the claimants’ counsel was mistaken about the waiver of cross-examination, and offered to postpone the hearing till Mr. Devlin could be produced on Ms return to town, to which the counsel for claimants replied that they had discharged their whole duty in the matter, and should not produce Mr. Devlin for cross-examination then or at any other time. The appellants’ counsel refused to proceed with their case, and objected that they should not be required to go on till Mr. Devlin should be produced. The referee, in substance, overruled the objection, and held that the case should proceed. In his report, the referee states that Mi'. Devlin had been twice produced for cross-examination, and that the’ counsel then present for appellants had declined to cross-examine him.
We must take this statement of the referee as true, because there is nothing in the papers before us to contradict it. The mere absence of a statement of the fact in the minutes does not have that effect. The exception based on the refusal to produce Mr. Devlin for cross-examination was properly overruled by the Special Term. Under the circumstances, as they are stated by the referee, the obligation to produce Mm had ceased, and it was the duty of the appellants, if they wished to examine him, either by way of cross-examination or directly, to subpoena and produce him themselves.
[25] The law of this State in respect of the lien of an attorney for costs seems to be well settled. Aside from the specific lien on deeds, papers and valuables in his hands as attorney, and which may be held for any general indebtedness for services (the extent of which lien is not now under discussion), an attorney has a lien for his costs in an action prosecuted by him, upon the recovery of a judgment. This formerly extended only to the taxable costs which were the legal measure of his compensation, but under the Code, which authorizes express or implied agreements between attorney and ehent as to such compensation, it embraces any amount expressly or impliedly agreed upon, as well as such part of the taxable costs and disbursements as may belong to him. (Rooney v. Second Av. R. R., 18 N. Y., 368; Sherwood v. Buffalo and W. Y. R. R. Co., 12 How., 136; Haight v. Holcomb, 16 id., 173; Pinder v. Morris, 3 Caines, 165 ; Bradt v. Koon, 4 Cow., 416; Howland v. Taylor, 6 Hun, 237. Bartle v. Gilman, 18 N. Y., 260 ; Moore v. Westervelt, 3 Sanford, 762.) But until there be a recovery of judgment no hen arises. (Pulver v. Harris, 52 N. Y., 73 ; Martin v. Hawks, 15 Johns., 405; Shank v. Shoemaker, 18 N. Y., 489; Foot v. Tewksbury, 2 Vt., 97; 1 Wait’s Actions and Defenses, 454.)
In St. John v. Diefendorf (12 Wend., 261), the question was, whether an attorney had a hen upon the damages recovered in a judgment to satisfy a demand against his chent for costs in other suits, and the court held, as Savage, Oh. J., tersely expressed it, that “ there can be no hen upon what belongs to. another, without possession.”
'In this case, the learned referee erred in holding that the claimants had any hen upon the moneys paid, or to be paid, on the settlement beyond the amount they were entitled to for their costs and compensation in the case in which they had recovered judgment. In one case, that is in the action upon the First avenue contract, it appears that the judgment had been recovered on the trial before a referee, which was reversed on appeal, and a new trial ordered, and that on such new trial a judgment for upwards of $35,000 was recovered, from which an appeal had been taken, and was pending when a compromise with the city was made. It is understood by us that that judgment was embraced in the compromise. If that be so, the claimants had a lien for their costs and compensation [26] upon so much of the moneys as were paid to effect tbe compromise of tbat judgment.
Tbe referee bas found tbat they were entitled to tbe amount of tbe costs as adjusted, and $5,000 for tbeir compensation in tbat case. There was no conflicting evidence as to these amounts, and, on tbe assumption tbat tbe compromise included tbat judgment, there seems to be no good reason why tbe lien may not be upheld.
There was no attorney’s lien, under tbe law, for services rendered in tbe Tenth avenue suit, because tbat case bad never reached judgment against tbe defendant therein. Tbe plaintiff was beaten at Special Term, and on tbe appeal to tbe General Term, but succeeded in reversing both judgments and obtaining an order for a new trial in tbe Court of Appeals, after which, and before any judgment, tbe compromise was made. No attorney’s lien for costs existed under tbe authorities above cited. Tbe same thing is true in respect of tbe account presented to Mr. Brown in 1873. Tbe referee erred in' bolding tbat tbe claimant bad any attorney’s lien for tbe amount of tbat account. But tbe referee found, in regard to tbat account and tbe other claims, as follows :
“ I do further find and report tbat, in addition to tbe lien of tbe said attorneys, there was a special promise and agreement made by said John L. Brown to and with tbe said Devlin and Miller, tbat tbeir costs, fees and disbursements in tbe several matters testified to before me, including a bill of $5,738.31, should be retained by them and paid out of tbe first, moneys which should be collected or received from tbe city, they conducting tbe proceedings meanwhile without receiving payment, and tbat they did conduct such proceedings.” This finding was excepted to by tbe appellants, and such exception raises two questions : First. Whether tbe evidence in tbe case justified such finding ? Second. Whether tbe agreement, as found, is sufficient to operate as an equitable assignment, fro tcmto, of tbe money paid, or to be paid, by tbe city on tbe settlement of tbe actions ? Tbe evidence of tbe agreement was given wholly by tbe witness John Wetherell, who testified tbat be was a partner of John L. Brown in tbe contracts. In relation to tbe agreement, bis testimony was as follows :
“Q. Do you recollect a bill being rendered by Devlin and Miller to Mr. Brown, some time in tbe year 1873? A. Yes, sir. [27] Q. Do you recollect the amount of it ? A. I think it was about $6,000. Q. Did you, at Mr. Brown’s request, see Devlin and Miller, after the rendition of that bill, and make any statements to them on the subject of its payment ? A. Yes, sir; Mr. Brown and I conversed about the matter, and he asked me if I would step down town to Devlin and Miller; after consultation, at his request, I went down and saw Messrs. Devlin, Miller & Trull; I have forgotten which one of the partners I did see now; I stated to them that the first money that came in their bill should be paid, out of the first moneys that we received from the city. Q. Was any thing said to them, to your knowledge, with reference to Mr. Brown’s money being tied up, or having any money to pay, excepting that which came from the city? A. Yes, sir; in conversation, I stated that all Mr. Brown’s affairs were tied up, and there was no way of getting the money except that came from the city. Q. Was it stated to them that they had charge of all these suits and litigations, and when the money came in they could be paid for all theff services out of it? A. Yes, sir; that was the direct conversation between me and Mr. Devlin and Miller with Mr. Brown, when I was present. Q. Did you hear Mr. Devlin’s testimony ? A. Yes, sii-. Q. Were you cognizant of these various services? A. I was.”
From this testimony, we think the referee could properly find an express agreement, that the account which had been presented to Brown should be paid out of the first moneys received from the city, and that the services of the claimants in all the suits and litigations should be paid out of - the money when it came in. Those suits were then pending, and there seems never to to have been any thing paid for the services rendered in them. It was competent for Brown to have made an express written assignment of the moneys to be realized, to the extent necessary to pay for the services of the claimants in full. Had he done so, there could be no question, as between himself and them, as to their right to compensation out of the fund realized by the settlement; and, under the authorities, if he had made an agreement with his attorneys that they should have for their compensation a stipulated share of all moneys collected or received, that would, upon the recovery of judgment, have operated as an equitable assignment. (Rooney v. Second Av. [28] R. R. Co., 18 N. Y., 368 ; Ely v. Cooke, 28 id., 365 ; McGregor v. Comstock, id., 237.)
In this case, the agreement did not fix the amount of compensation, but it must be understood as agreeing that whatever would be a fair and reasonable compensation should be so paid. The question arises between the attorneys and their client, and not between the claimants and the defendants in the actions, and therefore no question of notice of the attorneys’ rights, which has been of grave importance in many of the cases, arises. The money paid by the defendants has been intercepted and arrested by the order of the court, to abide the decision of the question of the lien and equitable assignment. If the equitable assignment be established, we see no good reason why the court may not, as between the claimants and their client, determine in this proceeding what is the just and fair compensation which the client agreed should be paid out of these moneys, and enforce the equitable assignment to that extent. If no case precisely analogous in its facts can be found, yet the principle of many of the cases already cited uphold the enforcement of such an assignment. (See, also, Marshall v. Meech, 51 N. Y., 110; Christie v. Sawyer, 11 N. H., 298 ; Jordan v. Gillen, id., 121.)
The equitable assignment (except in regard to the bill which had been presented to Mr. Brown) depended for its amount upon proof of a guanfum merwit. On that question, the only testimony was that of Mr. Devlin and Mr. Trull, and from their testimony the referee found, and the court at Special Term has also found, that the charges are, under all the circumstances, a fair and reasonable compensation. That the amount was not contested is no fault, certainly, of the claimants, and we do not feel at liberty to interfere with it.
It follows that the order of the Special Term appealed from should be affirmed.
Brady and Daniels, JJ., concurred.
Order affirmed.