Zaitz v. Metropolitan Street Railway Co.

52 A.D. 626, 65 N.Y.S. 395

Opinion

Per Curiam:

The order' denying the defendant’s motion to serve a supplemental answer must be reversed. 'The action was to recover damages for personal injuries. Issue was joined, the cause was on the calendar for trial, but -the plaintiff settled with the defendant and executed a general release. Subsequently thereto the defendant moved to set up in a supplemental answer that release as a bar to the plaintiff’s .action. The court at Special Term denied the motion because it appeared that the settlement was made without the knowledge of the plaintiff’s attorney, who had given notice of a lien upon the cause of action, and the plaintiff was not pecuniarily responsible. The question involved on this appeal was decided by this court in O'Brien v. Metropolitan St. Ry. Co. (27 App. Div. 1), which it was held that, in abaction of this-character, an application by a defendant to-be allowed to set up in a supplemental answer a settlement of the action and a release by the plaintiff should not be denied simply for-the reason that the plaintiff’s attorney had a lien upon the recovery as compensation for services in the action. In view of that. decision, the order appealed from must be reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars-costs: Present—Van Brunt, P. J., Rumsey, Patterson, Ingraham and McLaughlin, JJ.