Koenig v. Ætna Casualty & Surety Co.

Appellate Division of the Supreme Court of New York

Koenig v. Ætna Casualty & Surety Co.

7 A.D.2d 903, 182 N.Y.S.2d 564, 1959 N.Y. App. Div. LEXIS 9892

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 17, 1959

StatusPublished

This text of 7 A.D.2d 903 (Koenig v. Ætna Casualty & Surety Co.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Koenig v. Ætna Casualty & Surety Co., 7 A.D.2d 903, 182 N.Y.S.2d 564, 1959 N.Y. App. Div. LEXIS 9892 (N.Y. Ct. App. 1959).

Pincite

Opinion

Order denying petition to fix attorney’s statutory lien under section 475 of the Judiciary Law unanimously reversed on the law and in the exercise of discretion, and the petition granted, with costs to appellant. On the papers it is undisputed that plaintiff’s attorney served the summons on defendant Knickerbocker prior to a settlement by the carrier. As a consequence, the statutory lien attached and any settlement made by the carrier, as representative of defendant, was at its peril. However, it also appears from the papers without dispute that when the settlement was made the carrier’s representative had notice that there might be a retained lawyer, albeit at that time it did not know whether a summons had been served. In these circumstances, there is no issue tendered to defeat the attorney’s lien. Since under the retainer, which is also undisputed, the attorney is entitled to $820, the lien is fixed in that amount. While the statute appears to make no provision for fixing the lien as to the carrier, but only as to the other parties to the action, since the carrier had not interposed that objection at Special Term or in this court, it has waived the issue. Settle order on notice. Concur — Botein, P. J., Breitel, M. M. Frank, McNally and Stevens, JJ.

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Order denying petition to fix attorney’s statutory lien under section 475 of the Judiciary Law unanimously reversed on the law and in the exercise of discretion, and the petition granted, with costs to appellant. On the papers it is undisputed that plaintiff’s attorney served the summons on defendant Knickerbocker prior to a settlement by the carrier. As a consequence, the statutory lien attached and any settlement made by the carrier, as representative of defendant, was at its peril. However, it also appears from the papers without dispute that when the settlement was made the carrier’s representative had notice that there might be a retained lawyer, albeit at that time it did not know whether a summons had been served. In these circumstances, there is no issue tendered to defeat the attorney’s lien. Since under the retainer, which is also undisputed, the attorney is entitled to $820, the lien is fixed in that amount. While the statute appears to make no provision for fixing the lien as to the carrier, but only as to the other parties to the action, since the carrier had not interposed that objection at Special Term or in this court, it has waived the issue. Settle order on notice. Concur — Botein, P. J., Breitel, M. M. Frank, McNally and Stevens, JJ.

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Bluebook (online)

7 A.D.2d 903, 182 N.Y.S.2d 564, 1959 N.Y. App. Div. LEXIS 9892, Counsel Stack Legal Research, https://law.counselstack.com/opinion/koenig-v-tna-casualty-surety-co-nyappdiv-1959.