Bockes, J.
The former trial, verdict and judgment in this case are of no importance on this motion, for the reason that the judgment, on appeal, was reversed, and a new trial was ordered, with costs to abide the event. The case stands here as if no trial had been had at the time of the settlement by the parties.
The case then, briefly stated, is this: an action of assault and battery was pending, at issue and noticed for trial; when the parties settled the matter and the plaintiff executed to the defendant a release and-discharge, without consultation with, or notice to, his attorney, "to whom he had, in' terms, given a lien on the cause of action as secur[503]*503ity for his costs, advances and counsel fee, of which claim, by the plaintiff’s attorney, the defendant had notice at the time of settlement. Is the attorney at liberty to proceed in the action, to obtain his costs, advances and counsel fee, notwithstanding the settlement and release of the cause of action by the plaintiff? The release and stipulation executed by the plaintiff' undoubtedly bound Mm to all its terms, as there is no pretense that he was at all imposed on or entrapped into the settlement. He was not at liberty to proceed further in the cause, against the terms of the paper he had executed understanding^ and on good- consideration; or if he should proceed, in violation of it, his proceedings would be' set aside as irregular and improper. (Braisted v. Johnson, 5 Sandf. 671. Fitch v. Hall, 18 How. Pr. 314. Rule 16.) The proceedings in this case after the settlement and stipulation of discontinuance were irregular as regards the plaintiff, and cannot be upheld with a view to secure any advantages or benefits to him. This seems clear beyond peradventure.
But it is insisted that the plaintiff’s attorney had acquired rights in this case against the defendant, of which he could not be divested by a settlement of the cause of action without his concurrence or assent. This claim is based on the position that he had a lieu on, or right to, the cause of action which the defendant was bound to respect; a right which he could enforce against the latter in this court.' The action was assault and battery; an action arising out of a personal tort. Such rights of action are personal to the party, and cannot be assigned. (19 Wend. 73. 6 How. 161. 22 Barb. 110. 3 Abb. 37. 12 N. Y. 622.) These are but few of the many cases which hold or recognize this rule. In this case, therefore, the. attorney acquired no rights against the defendant by the assignment of the cause of action to him. It transferred no interest in the subject matter of the action. ' It may be valid and binding as an agreement between the [504]*504parties to it, (19 Wend. 73, 78, 79; 3 Abb. 37,) but with that question we have here no concern. The right of action remained with the plaintiff, subject to his personal control. The right to prosecute it; to forgive it and to release and discharge it; rested with him, unaffected, in so far as the defendant was concerned, by the paper executed to his attorney. So, after the plaintiff had released, and discharged the cause of action, his right of recovery was gone. He certainly, now, had no right to damages; and if not entitled to damages, he had no claim for costs. How, as regards the attorney—having acquired no right in the cause of action—he could have no better position than the party who was principal in the claim. The right to costs, whomsoever might be entitled to them when awarded, was dependent on the recovery of damages. If the plaintiff, (the claim being purely personal, and remaining in himself,) could not have damages, neither could he or any one claiming through or under him, have costs. All right to costs, on the part of the plaintiff, fell with the' obliteration and extinguishment of the cause of action. Had the plaintiff died, could the attorney have further prosecuted the suit, with a view to an indemnity for his costs, disbursements and counsel fee ? Clearly not. And was not all claim against the defendant as effectually obliterated and extinguished by the release and discharge of the cause of action, as if the plaintiff had died ?
The attorney’s right to prosecute the action against the wishes and without the authority of his client, must rest on the hypothesis that he is an assignee or “ equitable owner” of the cause of action. But he can be neither. The cause of action is not assignable. Ho right could be conferred by any form of transfer of it, as against the defendant, either legal or equitable. If he be assignee, or if he may, as “ equitable owner” of the claim, prosecute the suit for his own personal advantage and benefit, he should be liable to the adverse, party for costs in case of [505]*505failure to recover. Yet no one will maintain that the attorney in this case was liable to the defendant for costs in any possible contingency. The assignment of the cause of action was ineffectual as a transfer of the cause of action. So it conferred no right at law. This all concede. But it is said it nevertheless conferred equitable rights. So it did, as between the parties- to it—attorney and client. Indeed, as between them, it was valid and binding; not as a transfer of the cause of action; but it gave the attorney a right to retain the damages when recovered and collected, to the extent, and for the purposes specified in the paper. So, if damages had been recovered in the-action, and the money had come to the hands of the attorney, he could have retained it until the terms and conditions of the transfer were fully met and answered.* He could have insisted on the equity in his favor created by the instrument, although invalid in law as a transfer. But with these rights and equities the defendant has no concern. They pertain to the immediate parties to the transfer. As above stated, the transfer conferred no right, legal or equitable, against the defendant.
The case of Benedict v. Harlow, (5 How. 347,) is similar to this now under consideration, in all important particulars ; and is a decision directly in point. This action was assault and battery and false imprisonment. On the trial, the plaintiff had a verdict in his favor. Thereupon the parties settled, without notice to the plaintiff's attorney, and the plaintiff, by a release under seal, discharged the claim, notwithstanding the settlement, the plaintiff entered up judgment, which the defendants moved to set aside. The plaintiff’s attorney resisted the-motion on the ground that the settlement was a fraud upon him, and if sustained would deprive him of all compensation. He showed that he had incurred expense in conducting the suit, and that the plaintiff* was insolvent. Affidavits were also read tend[506]*506ing to show that the defendants knew that the settlement would operate as a fraud on the plaintiff’s attorney. The motion, however, was granted, and the judgment set aside. Judge Willard discussed the question in an elaborate opinion, and held that the parties had a right, to settle the suit before judgment without paying the attorney his costs. So in Shank v. Shoemaker, (18 N. Y. 489,) Justice Strong, in delivering the.
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Bockes, J.
The former trial, verdict and judgment in this case are of no importance on this motion, for the reason that the judgment, on appeal, was reversed, and a new trial was ordered, with costs to abide the event. The case stands here as if no trial had been had at the time of the settlement by the parties.
The case then, briefly stated, is this: an action of assault and battery was pending, at issue and noticed for trial; when the parties settled the matter and the plaintiff executed to the defendant a release and-discharge, without consultation with, or notice to, his attorney, "to whom he had, in' terms, given a lien on the cause of action as secur[503]*503ity for his costs, advances and counsel fee, of which claim, by the plaintiff’s attorney, the defendant had notice at the time of settlement. Is the attorney at liberty to proceed in the action, to obtain his costs, advances and counsel fee, notwithstanding the settlement and release of the cause of action by the plaintiff? The release and stipulation executed by the plaintiff' undoubtedly bound Mm to all its terms, as there is no pretense that he was at all imposed on or entrapped into the settlement. He was not at liberty to proceed further in the cause, against the terms of the paper he had executed understanding^ and on good- consideration; or if he should proceed, in violation of it, his proceedings would be' set aside as irregular and improper. (Braisted v. Johnson, 5 Sandf. 671. Fitch v. Hall, 18 How. Pr. 314. Rule 16.) The proceedings in this case after the settlement and stipulation of discontinuance were irregular as regards the plaintiff, and cannot be upheld with a view to secure any advantages or benefits to him. This seems clear beyond peradventure.
But it is insisted that the plaintiff’s attorney had acquired rights in this case against the defendant, of which he could not be divested by a settlement of the cause of action without his concurrence or assent. This claim is based on the position that he had a lieu on, or right to, the cause of action which the defendant was bound to respect; a right which he could enforce against the latter in this court.' The action was assault and battery; an action arising out of a personal tort. Such rights of action are personal to the party, and cannot be assigned. (19 Wend. 73. 6 How. 161. 22 Barb. 110. 3 Abb. 37. 12 N. Y. 622.) These are but few of the many cases which hold or recognize this rule. In this case, therefore, the. attorney acquired no rights against the defendant by the assignment of the cause of action to him. It transferred no interest in the subject matter of the action. ' It may be valid and binding as an agreement between the [504]*504parties to it, (19 Wend. 73, 78, 79; 3 Abb. 37,) but with that question we have here no concern. The right of action remained with the plaintiff, subject to his personal control. The right to prosecute it; to forgive it and to release and discharge it; rested with him, unaffected, in so far as the defendant was concerned, by the paper executed to his attorney. So, after the plaintiff had released, and discharged the cause of action, his right of recovery was gone. He certainly, now, had no right to damages; and if not entitled to damages, he had no claim for costs. How, as regards the attorney—having acquired no right in the cause of action—he could have no better position than the party who was principal in the claim. The right to costs, whomsoever might be entitled to them when awarded, was dependent on the recovery of damages. If the plaintiff, (the claim being purely personal, and remaining in himself,) could not have damages, neither could he or any one claiming through or under him, have costs. All right to costs, on the part of the plaintiff, fell with the' obliteration and extinguishment of the cause of action. Had the plaintiff died, could the attorney have further prosecuted the suit, with a view to an indemnity for his costs, disbursements and counsel fee ? Clearly not. And was not all claim against the defendant as effectually obliterated and extinguished by the release and discharge of the cause of action, as if the plaintiff had died ?
The attorney’s right to prosecute the action against the wishes and without the authority of his client, must rest on the hypothesis that he is an assignee or “ equitable owner” of the cause of action. But he can be neither. The cause of action is not assignable. Ho right could be conferred by any form of transfer of it, as against the defendant, either legal or equitable. If he be assignee, or if he may, as “ equitable owner” of the claim, prosecute the suit for his own personal advantage and benefit, he should be liable to the adverse, party for costs in case of [505]*505failure to recover. Yet no one will maintain that the attorney in this case was liable to the defendant for costs in any possible contingency. The assignment of the cause of action was ineffectual as a transfer of the cause of action. So it conferred no right at law. This all concede. But it is said it nevertheless conferred equitable rights. So it did, as between the parties- to it—attorney and client. Indeed, as between them, it was valid and binding; not as a transfer of the cause of action; but it gave the attorney a right to retain the damages when recovered and collected, to the extent, and for the purposes specified in the paper. So, if damages had been recovered in the-action, and the money had come to the hands of the attorney, he could have retained it until the terms and conditions of the transfer were fully met and answered.* He could have insisted on the equity in his favor created by the instrument, although invalid in law as a transfer. But with these rights and equities the defendant has no concern. They pertain to the immediate parties to the transfer. As above stated, the transfer conferred no right, legal or equitable, against the defendant.
The case of Benedict v. Harlow, (5 How. 347,) is similar to this now under consideration, in all important particulars ; and is a decision directly in point. This action was assault and battery and false imprisonment. On the trial, the plaintiff had a verdict in his favor. Thereupon the parties settled, without notice to the plaintiff's attorney, and the plaintiff, by a release under seal, discharged the claim, notwithstanding the settlement, the plaintiff entered up judgment, which the defendants moved to set aside. The plaintiff’s attorney resisted the-motion on the ground that the settlement was a fraud upon him, and if sustained would deprive him of all compensation. He showed that he had incurred expense in conducting the suit, and that the plaintiff* was insolvent. Affidavits were also read tend[506]*506ing to show that the defendants knew that the settlement would operate as a fraud on the plaintiff’s attorney. The motion, however, was granted, and the judgment set aside. Judge Willard discussed the question in an elaborate opinion, and held that the parties had a right, to settle the suit before judgment without paying the attorney his costs. So in Shank v. Shoemaker, (18 N. Y. 489,) Justice Strong, in delivering the. opinion of the court, remarks: “ There is no case which goes far enough to show that a party who has not obtained a judgment in his favor cannot settle a suit because it may prejudice the possibility, or even probability, that his attorney might obtain his costs by a future trial and a judgment in favor of his client.” In this case, also, it was insisted that the settlement was in fraud of the attorney’s right to recover costs, because of the insolvency of his client; In The People ex rel. Stanton v. Tioga Com. Pleas, (19 Wend. 73,) it was directly decided that a personal tort was not assignable, so that a court of law would .protect the assignee against the subsequent fraudulent discharge of - the damages recovered in a suit prosecuted for such tort; and Judge Cowen, in this case, says: “Assignments of personal injuries mus't still be regarded as mere covenants or promises, which we cannot protect against the interference of the immediate .party, though the defendant have full notice of the effort to assign;” and he adds: “If the person professing to assign will do prejudice to the right, by extinguishing or impairing it, the party with whom he deals must be left to his action for damages, according to the nature of the undertaking. If it be under seal,, then he must bring covenant; * * * if without seal, then assumpsit.”' Thus it is,declared that the parties may settle, even with notice to the defendant of the attempted transfer, and .the plaintiff may extinguish the claim; in which case redress can be had by the attorney only by proceedings against his client for damages, aócording to [507]*507the nature of his claim. I am referred to the decision in Rasquin v. The Knick. Stage Co., (12 Abbott, 324,) a case in the Yew York common pleas, where it is decided that when a settlement of a pending suit is privately effected between the parties, with the design of preventing the attorney from obtaining his costs, the court will, notwithstanding the settlement, allow the attorney to go on and collect the costs in the action. To the same effect is the decision in McDowell v. The Second Avenue R. R. Co., (4 Bosw. 670,) in the Yew York Superior Court. See also, Owen v. Mason, (18 Mow. 156,) in this court. In neither of these cases is the decision in Benedict v. Harlow, or in The People v. Tioga Com. Pleas, alluded to; although .in McDowell v. The Second Avenue R. R. Co., the question in-° valved received very careful examination; and many cases, both in this country and in England, are cited. Added to the above decisions, (5 How. 347; 19 Wend. 731,) is now the decision in Shank v. Shoemaker, (18 N. Y. 489.) It may be here remarked that many of the cases cited are those where judgment had been perfected or verdict rendered; hence the right to costs was determined, prior to the settlement or alleged improper interference of the party. Those cases differ widely from this, in which the settlement was made and the release given before trial, and of course before costs were awarded, or the right to them was made certain.
Having given this motion earnest consideration, and having, as I believe, examined the authorities bearing on the question before me, I am led to the conclusion that the case falls directly within the principles of law laid down in The People v. Tioga Common Pleas, (19 Wend 73;) in Benedict v. Harlow, (5 How. 347;) and in Shank v. Shoemaker, (18 N. Y. 489.) ' It is clear that the cause of action was nbt assignable; therefore the plaintiff’s attorney acquired no right whatever against the defendant, by vir[508]*508tue of the assignment of it to him; and without this he certainly -had no lien or claim thereon. So the authority to settle the matter in litigation before trial, and consequently before the right to costs was determined, rested with the plaintiff, without any right in the attorney to prevent him from so doing, or to dictate terms. The cause of action was personal to himself purely. It would not survive him; and was incapable of being transferred to another; hence it lay with him to discharge or to enforce it. In this condition of the case he settled and discharged the claim. ¡Now the right of recovery was extinguished, and.of .course all claim for costs was gone. I have above considered this case as an effort on-the part of the attorney to continue the prosecution of the action only with a view to obtain his taxable costs in the action. But the attorney’s .claim goes much beyond this. 'He insists that he may prosecute the suit and recover and collect damages to the extent of his advances and counsel fee; in this case stated at a sum exceeding $300. In other words, that he may control and enforce the cause of action and collect damages to an amount exceeding $300, notwithstanding the settlement, and the release and discharge of damages by the plaintiff. May -he do this ? He places his right so to do on the same footing with his right to collect his taxable costs. If he may proceed to collect his taxable costs, he. may also collect damages to the extent of his advances and counsel fee. I think if the taxable costs may be collected in this case, the damages may also be collected. But, in my judgment, neither can be recovered and collected here against the settlement and discharge.
Thi's seems a hard case for the plaintiff’s attorney, who has performed much labor and has incurred considerable expense in conducting the suits, as, in all probability, he is without redress. But the defendant is not to be held responsible simply because the attorney, can obtain recom[509]*509pense from no other source. There must be good ground to charge him with a loss resulting to his adversary’s attorney, before it can be cast over upon him.
[Saratoga Special Term,
July 9, 1872.
Bockes, Justice.]
Motion granted.