State ex rel. Phelps v. Borough of Fort Lee

192 A. 581, 15 N.J. Misc. 511, 1937 N.J. Sup. Ct. LEXIS 134

• Court: Supreme Court of New Jersey
• Decided: June 22, 1937
• Status: Published

Opinion

Per Curiam.

Mr. Warren Dixon, Jr., representing John Kenlon and Lester C. Burdett, trustees, the holders of certain defaulted note obligations of the borough of Bort Lee, intervened in the above cause and successfully conducted litigation in this court, afterward affirmed by the Court of Errors and Appeals, whereby his clients became presently entitled to the sum of $126,000, which sum of money has been segregated and kept under the order of this court in certain designated depositories. After the cause had been determined in this court and after the appeal had been argued in the Court of Errors and Appeals, the trustees, Kenlon and Burdett, resigned and in their place and stead, Mr. Daniel T. O’Regan was appointed trustee by the Court of Chancery.

Mr. Dixon seeks to have impressed upon the fund in the control of this court a lien pursuant to Pamph. Ij. 1914, ch. 201, p. 410; Cum. Supp. Comp. Stai. 1911-1924, p. 1805, § 116-76. Clearly, Mr. Dixon is entitled to the lien and this court, by virtue of the statute, is authorized to determine the amount thereof.

“The statute of 1914 creates a new remedy for the enforcement of an old right. The new remedy is the lien given by the statute upon the client’s cause of action, suit, claim or counter-claim, and any verdict, report, decision, decree, award, judgment or final order and the proceeds thereof.” Levy v. Public Service Railway Co., 91 N. J. L. 183; 103 Atl. Rep. 171.

Mr. Justice Garrison also said in the Levy ease: “The determination is necessarily based upon the nature, extent and value of such services, all of which are jury questions, especially when they arise between parties between whom the relation of attorney and client does not exist.”

In this case, the determination of the extent of the lien is between attorney and client and not between the attorney and a third party who had settled the cause of action with the client. In the Court of Chancery, the extent of the lien would be determined by that court without a jury in accordance with the usual practice there pertaining. Cicalese v. Fortunato, 92 N. J. Eq. 329; 112 Atl. Rep. 508. The practice to be followed in determining the extent of the attorney’s lien in an action at law was indicated by Mr. Justice Parker, for the Court of Errors and Appeals, in Artale v. Columbia Insurance Co., 109 N. J. L. 463; 162 Atl. Rep. 585.

It is suggested, however, that the amount of compensation to be recovered by an attorney is a fact question and this court may in a mandamus proceeding determine the facts. However, the usual practice, where there is a fact issue in mandamus, is to refer the matter to the Circuit for trial before a jury. Section 9 of the Practice act of 1903 (Pamph. L., p. 538), is as follows: “Ho solicitor or attorney shall commence or maintain any action for the recovery of any fees, charges or disbursements, in equity or at law, against his client or his legal representative, until he shall have delivered to such client or his representative or left for him at his usual place of abode a copy of the taxed bill of such fees, charges and disbursements.”

The above provision of law seems indicative of the legislative purpose to leave the attorney, who seeks compensation for his services, in the position of all others who seek recovery on a quantum meruit. The attorney has one advantage, and that is the security of the lien upon the verdict, decision, decree, award, judgment or final order in his client’s favor.

Mr. Dixon, having presented his petition to the court naming the parties interested in the recovery and claiming a lien, has set the judicial machinery in motion (Artale v. Columbia Insurance Co., supra), and the issue may be framed so that the questions may be determined in accordance with the practice laid down in that case.