Sterling v. Miller

2 A.D.2d 900, 157 N.Y.S.2d 145, 1956 N.Y. App. Div. LEXIS 3816

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 19, 1956
• Status: Published

Opinion

In an action by a substituted attorney to establish an equitable lien on a fee received by his successor, the respondent Miller, pursuant to written agreements, the appeal is from so much of an order which on reargument denies a motion for summary judgment to strike out the answers or to strike therefrom the affirmative defenses, pursuant, respectively, to rule 113 and subdivision 6 of rule 109 of the Rules of Civil Practice. Order modified by striking therefrom the second and third ordering paragraphs and by substituting therefor a provision that the motion for summary judgment be granted. As so modified, order affirmed, with $10 costs and disbursements to appellant. No triable issues were raised. The agreement between the appellant and the respondent Miller to split fees was valid and enforcible, regardless of respondents’ claim that appellant, after obtaining the original retainer, contributed negligibly towards the earning of the fee, especially since there is no claim that appellant ever refused to contribute more substantially. (Fried v. Cahn, 239 App. Div. 213.) The agreements were in writing and were couched in unambiguous terms. The construction of the agreements was a matter of law for the court. (Brainard v. New York Cent. R. R. Co., 242 N. Y. 125.) There is no basis for the contention that the original retainer terminated with the dismissal of the petition in the United States Court of Claims. Appellant’s lien attached to the legal fee even though the fee became payable as the result of a settlement after the dismissal and an application to the Supreme Court of the United States for a writ of certiorari. (Matter of Wise, 172 App. Div. 491.) The agreements did not violate the Federal Assign ment of Claims Act (U. S. Code, tit. 31, § 203) which sanctions assignments of claims against the United States Government only when specified conditions have been met. This statute is “ for the protection of the Government and not for the regulation of the equities of the claimants as between themselves.” (McKenzie v. Irving Trust Co., 323 U. S. 365, 369, affg. 292 N. Y. 349.) Nolan, P. J., Beldoek, Murphy, Ughetta and Kleinfeld, JJ., concur.