Crossman v. Smith

116 A.D. 791, 102 N.Y.S. 18, 38 N.Y. Civ. Proc. R. 356, 1907 N.Y. App. Div. LEXIS 28

Opinion

Woodward, J.:

Hannah Crossman was the landlord of William F. Smith. They had differences and Smith sued the respondent in the Supreme Court. .The respondent at the same time began a proceeding to dispossess the appellant for the non-payment of rent. In this proceeding the respondent was successful, but the appellant appealed to the County Court. While this appeal was pending Smith expressed á desire to settle the differences, resulting in a settlement. in which Smith paid the respondent the sum of $133.33 for back rent and, for two months in'advance. It was agreed in writing on the part, of Smith “ that all suits in law in regard to the above property is

Footnotes

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* this day and date withdrawn and settled,” and while the agreement is loosely drawn, there can be no doubt that it was intended as an adjustment of the differences between the parties, and was 'so accepted by both of them in good faith. Some time after this settlement between the parties Smith’s attorney entered a judgment' on appeal against Mrs. Crossman for the sum of $38.12, this being done for the purpose of securing his fees, rather than from any doubt as to the settlement and its scope, and upon this appeal from an order setting aside this judgment, the appellant urges that he had a lien upon the cause of action for his fees.

There was no counterclaim involved in the proceeding, and there could not,- therefore, be any statutory lien. (See Code Civ. Proc. § 66.) No fraud or collusion is shown ; the'settlement between the parties appears to have been made and accepted in good faith, and just how the defendant’s attorney could be entitled to have this judgment stand is more than we have been able to discover. The case of National Exhibition Co. v. Crane (54 App. Div. 175 ; affd., 167 N. Y. 505) rests upon the fraud and collusion practiced on the defendants attorney, and has no relation to the facts as they appear in the matter now before the court, and the books will, we believe, be searched in vain for a case in which the defendant’s attorney has been permitted to prosecute an appeal for the mere purpose of securing his fees after the parties to the action have settled in good faith.

The order appealed from should be affirmed, with costs.

Jenks, Hooker, Gaynor and ¡Rich, JJ., concurred.

Order of the County Court of ¡Nassau county affirmed, with ten dollars costs and disbursements.

Sic.