In re Robinson

125 A.D. 424, 109 N.Y.S. 827, 1908 N.Y. App. Div. LEXIS 2801

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 10, 1908
• Status: Published

Opinions

Ingraham, J.:

I do not think that the appellant’s property ever became subject to a lien in favor of the respondent, which he could enforce under section 66 of the Code of Civil Procedure. That section provides that “ from the commencement of an action or special proceeding, or the service of an answer containing a counterclaim, the attorney ivlio appears for a party has a lien upon his client’s cause of action, claim or counterclaim, which attaches to a verdict, report, decision, judgment or final order in his client’s favor, and the proceeds thereof in whosesoever hands they may come.”

In the proceedings in the Surrogate’s Court letters of administration upon the estate of the appellant’s husband were granted. The appellant was entitled to administer the estate, applied for and obtained letters of administration thereon, filed her inventory, and resisted a motion to remove her as administratrix. The respondent appeared for her in these proceedings, succeeded in defeating the claim of the intestate’s next of kin, and for those services he rendered his bill and was paid. Subsequently, upon the accounting, the next of kin sought to charge as against the administratrix certain property that belonged to her, which it was claimed was the property of the husband and should be accounted for. . In that proceeding the respondent appeared for the appellant and defeated the claim of the intestate’s next of kin; but that was a claim against the appellant, not one in her favor which was enforced in the proceeding in the Surrogate’s Court and in which the appellant was represented by the respondent. Section 66 of the Code of Civil Procedure gives a lien upon “ his client’s cause of action, claim or counterclaim;” but the appellant had no cause of action, claim or counterclaim involved in the proceeding in the Surrogate’s Court. The next of kin of her intestate asserted the claim, which was defeated. After the final order, the lien attaches to “ a verdict, report, decision, judgment or final order in his client’s favor, and the proceeds thereqf in whosesoever hands they may come; ” but here there was no cause of action, claim or counterclaim which was sought to be enforced in the proceeding in which the respondent represented the appellant. All that could be subject to a lien of the respondent was the estate of the decedent, which was the subject of the controversy before the surrogate, and the property that . belonged to the appellant and was in her possession was neither involved in a cause of action nor a claim of the appellant nor in the proceeds of the final order.

I think, therefore, this order should be reversed and the proceeding dismissed, with ten dollars costs and disbursements, without prejudice, however, to any action that the attorney may bring against his client for the services rendered to her.

McLaughlin and Laughlin, JJ., concurred; Clarke and Soott, JJ., dissented.