rapid and clear; language well chosen; no hesitation of thought, no defect of memory; clear recollection of all facts; and no inconsistency of statements as to facts, life, and health, as to the dates of his illnesses, or as to the occurrences in connection with his fainting attacks; no exaggeration of manner; no boastfulness, but quiet and logical statements, without emotional excitement, or any evidence of exaltation or depression. From the facts stated, and from the result of a careful physical examination, the witness concludes that Mr. Paradise is a fairly healthy man; that he has never at any time in his life been the subject of epilepsy or of epileptiform attacks; and that he is not at present suffering from epilepsy. He further declares it to be his opinion that Mr. Paradise is of sound mind, in the full possession of his faculties, and has never at any time suffered from any mental disease; and that at present he has no sign of any mental disease whatever; and that he is further of the opinion that the attack from which Mr. Paradise suffered on April 26, 1893, was of the nature of syncope, due to nervous exhaustion, and that it did not interfere in any way with his mental capacity or power of judgment before the time of its occurrence; and that within a short time after its occurrence he was undoubtedly as mentally sound and capable of exercising judg ment as before its occurrence.

5. Dr. Alexander E. McDonald, in his testimony, after stating that he made a personal examination of Mr. Paradise with a view to determining his mental and physical condition, and with reference especially to the existence or nonexistence of general paresis and of epilepsy, says that he is of the opinion, based upon such examination, that there is no perceptible symptom or indication of either disease, either past or present, but that, on the contrary, Mr. Paradise is in full possession of his mental faculties, and has, to the best of his opinion and belief, been in such mental condition and free from such diseases during the period of his life, and up to this time. I have already referred to and quoted so much of Dr. Stewart's testimony as referred to the mental condition of Mr. Paradise on the night of the 26th of April, when he attended him at the Astor House. His opinion, based upon his treatment of Mr. Paradise on that occasion, and such information as he received from Mr. Paradise's son, to which reference has already been made, was that the juror did not suffer from epilepsy in any of its forms; and that his illness was caused by exhaustion; and that prior to the attack, and after his recovery therefrom, he was as mentally capable of performing his duty as a juror as any of his fellows. Barrett's testimony, so far as it bore upon the mental and physical condition of the juror, is as follows:

"That he saw several men come out of the dining room bearing the body of another man [doubtless Mr. Paradise] with them, whom they laid down on the floor in the alcove, opposite the door where the office used to be. He seemed very ill, suffering apparently from convulsions, twitching all the while, and requiring the strength of three or four men to hold him, one holding each arm and one the head; and that subsequently, and about 11 o'clock, they brought the sick man downstairs, two men holding him and assisting him, and put him in a carriage with the doctor."

Scott's testimony, bearing upon the same question, is to the following effect: That he saw Mr. Paradise when lying on the floor, and the others around him, and subsequently, when he came down stairs, assisted by two men. The evidence of Mr. Franceville, although not admissible, having a tendency to affect or impair his verdict as a juror, which bears upon the question of Mr. Paradise's mental capacity, is to the effect that he saw him about falling from his chair. That he was carried out of the dining room, and laid upon the floor of the alcove. That he went down "like a shot," and was unconscious, and was supported or held by several persons. He did not see him after he was removed upstairs, and until he joined the main body of the jurors. That he saw a great deal of Paradise during the trial, and more especially during their deliberations when the cause was finally submitted to the jury to decide. He appeared to be sick, and was complaining during the greater portion of the trial, especially in the latter days thereof; seemed irritable, excited, and extremely nervous; complained bitterly upon not being permitted to go to bed; stated that the recorder could not keep him out of bed, and that he would sue the recorder and the county. That he appeared when making use of those expressions, to be nervous and excited, and that, during the last 24 hours of the trial, he appeared to be abstracted, and unusually nervous and excited, as if the protracted strain was mentally and physically wearing upon him. He told him that he would hold him personally responsible for his life, and that his life was worth more than that fellow's downstairs. The material portions of the testimony of Mr. Franceville have been contradicted by others of the jury, all of whom concur in stating that they observed nothing in the manner or conduct of Mr. Paradise which showed any more nervousness and excitement than what would be reasonably produced by the protracted trial, and as to the expressions about suing the recorder and the county, and about holding Mr. Franceville responsible for his life, those are explained by Mr. Paradise himself, who says that they were made jocosely. The expert evidence bearing upon the question of the mental condition of Mr. Paradise is conflicting. The opinions of the experts upon which the defendant relies are to the effect that Mr. Paradise was mentally incapable of performing his duties as a juror, and that his incapacity to do so arises from a disease of an epileptic form, from which he was suffering, and one of them goes so far as to hold that he is now suffering from general paresis. The opinions of the experts upon which the people rely are to the effect that the juror was mentally capable of performing his duties on the occasion in question, and that the illness from which he suffered was not caused by any disease of an epileptic form, and that he had never suffered from any such disease, nor is he the victim of general paresis.

For the purpose of testing the correctness of these opinions, a reference to the evidence upon which they are severally based became necessary, and I have quoted at sufficient length the evidence upon which each set of experts acted. The defendant's experts based

their opinions upon the testimony of Dr. Stewart, that of Mr. Paradise's son, and upon the ex parte affidavits of Barrett, Welsh, Franceville, and Scott, without having made any personal examination of the juror. The people's experts, on the other hand, not only made a careful, scientific, and personal examination of the juror, but they also had the benefit of the statements of Drs. Pritchard and Schram, the juror's family physicians. Estimating the value of the conflicting opinions according to well-known rules of law, I should be compelled to adopt the opinions of the people's experts, but, in addition to the expert evidence presented by the people, the evidence of 10 of Mr. Paradise's fellow jurors, that of his wife, and also of his employer, as well as the evidence of Mr. Paradise, to which reference has already been made, was presented by the people, and, in my opinion, fully sustains the opinions of the people's experts. Applying to all the evidence the well-established rule of law that the testimony of experts is entitled to the same credit and is to be tested by the same rules as are to be applied to the testimony of other witnesses, and should have weight according to their qualifications and opportunities, while their opinions are not conclusive, they are to receive so much weight as a jury may deem it entitled to, when viewed in connection with all the other circumstances, and they must also be predicated upon the facts established by the proofs in the case, I have arrived at the conclusion, after a careful examination of all of the evidence upon which these opinions are predicated, that the opinions of the experts produced by the people are warranted by the evidence, while the opinions of the defendant's experts are not. I cannot but believe that if the evidence which is before me bearing upon this subject had been before the learned experts for the defendant, or if they had submitted Mr. Paradise to the same scientific examination to which he was submitted by the people's experts, they would have arrived at a different opinion in respect to his mental capacity than that to which they have given expression. Entertaining the views herein. expressed in regard to the several motions made by the defendant, it follows that they, and each of them, must be denied.

GRIGG v. MCNULTY et al.

(5 Misc. Rep. 334.)

(City Court of Brooklyn, General Term. October 23, 1893.)

1 ATTORNEY-CONTRACT FOR LIEN-EFFECT AS TO GRANTEE OF CLIENT. The owner of land, part of which had been condemned for public use, retained plaintiff as his attorney in the proceeding to ascertain his compensation, and agreed to pay plaintiff for his services a certain share of the award, such share "to be a lien on the property." Held, that plaintiff's claim for services was not such an inherent part of the condemnation proceedings as to render it a charge on the land in the hands of defendant, who, pending such proceedings, had procured a decree against the landowner for specific performance of a contract of sale, "subject to the judgment of condemnation."

2. SAME TO WHAT LIEN ATTACHES.

Under Code Civil Proc. § 66, which provides that the lien of an attorney shall attach to the "judgment in his client's favor, and to the proceeds thereof, in whosesoever hands they may come," an attorney who represents a landowner in a proceeding to condemn part of a tract of land, has no lien on the land itself.

Appeal from special term.

Action by William Grigg against Charles Urban and Peter H. McNulty. Plaintiff had judgment against Urban, but the demand. for relief against McNulty was dismissed. From the judgment in favor of McNulty, plaintiff appeals. Affirmed.

Argued before OSBORNE and VAN WYCK, JJ.

William Grigg, in pro. per.

Gaynor, Grout & De Fere, for respondent.

OSBORNE, J. On and prior to October 24, 1891, defendant Urban was the owner of certain premises on Fulton street, running through to Liberty street, in this city. On that day a judgment of condemnation was entered on the application of the trustees of the New York & Brooklyn Bridge, in proceedings to acquire a part. of said premises, and commissioners were appointed to ascertain the compensation to be made. On December 18, 1891, defendant Urban made an agreement in writing with plaintiff, by which he retained the plaintiff as his attorney in the proceedings for compensation, and agreed to pay him for his services a sum equal to one-half of the amount received for damages in excess of $20,000, "said one-half to be a lien on the property." While these proceedings were pending, defendant Urban contracted with the respondent McNulty, by agreement dated February 12, 1892, to sell and convey to him the whole of said premises, and in an action brought in this court by McNulty for that purpose specific performance of this contract was adjudged by judgment entered August 2, 1892, and Urban was directed to convey, subject, however, to said judgment of condemnation. 21 N. Y. Supp. 247. On March 19, 1892, the commissioners appointed to make compensation by their report awarded to defendant Urban the sum of $26,000 for the land taken, out of which $25,000 was to be paid to satisfy a mortgage then on said property, and the balance of $1,000 was to be paid to two tenants. This report was confirmed on April 4, 1892. Plaintiff now brings this action on his said agreement with Urban, alleging the judgment for specific performance above referred to, directing, among other things, that the defendant McNulty should take said premises subject to said condemnation proceedings, and that the claim of the plaintiff is part and parcel thereof, and he prays for judgment against Urban for $3,000 and interest, "and that said sum be declared a lien upon the premises herein described, paramount to the claims of the defendants herein." Notice of lis pendens was filed herein August 30, 1892. Defendant Urban was served on October 28, 1892, and defendant McNulty on December 28, 1892. On the trial, plaintiff had judgment against

the defendant Urban, and the complaint against McNulty was dismissed. From the judgment in favor of McNulty dismissing the complaint as against him, the plaintiff brings this appeal.

We cannot agree with the contention of the learned counsel for the appellant that his claim for compensation was such an inherent part of the condemnation proceedings that, when Urban was directed to convey to McNulty "subject to the judgment of condemnation," such conveyance was also subject to the claim of plaintiff for his professional services, nor is there anything in the judgment for specific performance that, in our opinion, can fairly bear such a construction. Plaintiff's agreement with Urban was never recorded, nor is there any claim that the respondent ever had any notice of such an agreement, so that the provision in the agreement that plaintiff's one-half should "be a lien on the property" cannot bind the respondent.

The appellant further contends that under section 66 of the Code of Civil Procedure he had a lien on the real property for his claim, and that such alleged lien followed the property, and that whoever took title thereto took it subject to his alleged lien. We do not think that the section in question helps the plaintiff in this controversy. It might be suggested that the section applies only to "actions," and not to a special proceeding, such as this is; but that, perhaps, might be deemed too narrow a construction of the section. Conceding that under this section the plaintiff had a lien, and that attached to the "judgment in his client's favor, and the proceeds thereof, in whosesoever hands they may come," it appears from the evidence that no portion of the "proceeds" or recovery came into the hands of the respondent; all of the award was paid to mortgagees and tenants of the premises, and there was nothing accruing from the judgment and award that came to respondent's hands to which any lien could attach. That damages awarded for land taken for public use stand in lieu of the land is well settled, but this is not a proceeding to reach the award.

The learned counsel for the appellant likewise claims that in equity he should be protected; that when Urban contracted to sell to McNulty such contract was subject to any prior equities existing against the property; that McNulty resorted to equity to enforce specific performance, instead of seeking his legal remedy for damages; and he contends that whatever equitable rights McNulty had were subordinate to his (plaintiff's) prior and superior equities. It seems to us that a complete answer to this contention is found in the tenth finding of fact of the learned trial judge. He finds that there was no evidence showing that the defendant Urban is insolvent. For aught that appears to the contrary, the judgment which plaintiff now has against Urban is good and collectible. that fact appears, till it is shown that plaintiff is remediless at law, he cannot be heard in equity. For the reasons stated we think that the judgment appealed from should be affirmed, with costs.