Pitcher v. Robertson

21 N.Y.S. 66, 49 N.Y. St. Rep. 356

• Court: New York Supreme Court
• Decided: December 12, 1892
• Status: Published

Opinion

PRATT, J.

The parties to this action apparently became convinced that it could not be maintained, and therefore settled their controversy without providing for the fees of the plaintiff’s attorney. Thereafter an order was granted at special term discontinuing the cause. The plaintiff’s attorney opposed the .discontinuance, and asks to be allowed to amend the summons and complaint in important respects, and to continue the action, with the purpose of establishing and perfecting his lien upon the cause of action, and thereby enforcing the payment of his fees. Where a collusive settlement of an action has been made for the purpose of defrauding an attorney of his fees, the court will sedulously seek means to prevent the fraud and protect the attorney’s rights; and it may well be that in such a case the court would grant needed amendments, and allow the action to be prosecuted to judgment. In the present case we find no evidence that the settlement was intended to be hostile to the claims of the plaintiff’s attorney or that his rights are in fact imperiled. There is no suggestion that the plaintiff disputes or is unable to respond to the claims of her attorney. The plaintiff makes an affidavit in support of her attorney, and the apparent object of the opposition now made to the discontinuance is to require the payment by other parties to the action of the fees of plaintiff’s attorney. We do not think a case is made justifying the continuance of the action for that purpose. Order affirmed. All concur.