(211 N.Y.S.)

rer, and the renewal of the plea of not guilty after the demurrer had been overruled. The situation at the time the demurrer was filed, and the conduct of the parties immediately after, indicate that this is what they all intended, and what they all understood was the effect of what they did. People v. Bradner, 107 N. Y. 1, 13 N. E. 87.

The judgment of conviction of the County Court of Orange County, and the order overruling the demurrer, should be reversed on the law, the demurrer sustained, the indictment dismissed, and the defendant discharged. All concur.

(213 App. Div. 742)

MILLS et al. v. FREMD et al.

(Supreme Court, Appellate Division, Second Department. July 16, 1925.) Municipal corporations 121—Village ordinance requiring permit to land excursion boats not declared invalid, in advance of application for permit or its refusal.

Ordinance enacted under Village Law, § 90, subd. 19, requiring application to village trustees for permission to land excursion boats, and authorizing trustees to refuse or grant permission, with such restrictions as may be deemed advisable, will not be declared invalid in advance of application for permit, or of attempt to prevent operation of plaintiff's business; there being no presumption that village officials will endeavor to enforce unreasonable or arbitrary restrictions.

Jaycox and Rich, JJ., dissenting.

Submission of controversy between Andrew H. Mills and another and Theodore Fremd and others, Board of Trustees of the Incorporated Village of Rye, and others, on an agreed statement of facts, under Civil Practice Act, §§ 546-548. Judgment directed for defendants, dismissing the complaint without prejudice.

Argued before KELLY, P. J., and RICH, JAYCOX, KELBY, and KAPPER, JJ.

James M. Gorman, of New York City (Pierre M. Brown and Humphrey J. Lynch, both of New York City, on the brief), for plaintiffs. William Rand, of New York City (Harry J. Robinson, of New York City, and Daniel E. Kelly, of Rye, on the brief), for defendants.

PER CURIAM. We are of opinion that the village ordinance in question, enacted pursuant to Village Law, § 90, subd. 19 (as added by Laws 1916, c. 199, § 1, and as amended by Laws 1922, c. 523), is not invalid on its face. The village trustees are empowered by the stat

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

ute, originally passed in 1884 (Laws 1884, c. 129, adding to Laws 1870, c. 291, tit. 3, § 3, subd. 28, revised by Village Law 1897, § 89, subd. 19, now Village Law, supra, to regulate or prevent the landing of excursion boats in the village. The ordinance of May 11, 1925, effective May 29, 1925, provides for application for the consent of the trustees, who may refuse it or may grant it, with such restrictive or regulatory provisions as may be deemed advisable. See Rye Village Ordinances, c. 12, art. 8, § 1. The plaintiffs, operating an excursion boat, challenge the right of the village trustees to regulate them in any way. They refuse to apply for a permit or consent. The village trustees have not attempted to prevent the operation of plaintiffs' boats. Upon application made, they may grant their consent. We do not believe the courts should assume that these duly elected village officials will endeavor to enforce unreasonable or arbitrary restrictions. We should not invalidate laws or ordinances upon any such presumption. The plaintiffs should first comply with the law and the ordinance. If the village trustees, upon application made to them, act illegally, arbitrarily, or unreasonably, then only should the question be relegated to the judicial branch of the government.

Upon the agreed statement of facts, the defendants are entitled to judgment dismissing the complaint, with costs, without prejudice.

JAYCOX and RICH, JJ., dissent, with memorandum, and vote to award judgment for plaintiffs.

JAYCOX, J. (dissenting). The ordinance is void, as it gives arbitrary and uncontrolled power to the board of trustees. It fixes no standard upon compliance with which an applicant can go before a court and obtain mandamus, on the ground that the board of trustees has failed in the performance of a legal duty. It plainly permits discrimination, and allows the board of trustees to apply restrictions in one instance that are not applied in another, although the bases of the applications may be the same. Yick Wo v. Hopkins, 118 U. S. 356366, 6 S. Ct. 1064, 30 L. Ed. 220.

It is urged that this action is premature, and that upon application reasonable restrictions will be made and all applicants treated alike. This is no answer to the claim that the ordinance is illegal. The legality of such an ordinance is not dependent upon what has been done in any particular instance; its legality is to be determined by what may be done under and by virtue of its authority. Colon v. Lisk, 153 N. Y. 188, 194, 47 N. E. 302, 60 Am. St. Rep. 609; Stuart v. Palmer, 74 N. Y. 183, 30 Am. Rep. 289; Gilman v. Tucker, 128 N. Y. 190-200, 28 N. E. 1040, 13 L. R. A. 304, 26 Am. St. Rep. 464; McKinney's Consolidated Laws, vol. 2, p. 34.

(125 Misc. Rep. 407)

(211 N.Y.S.)

WARD v. ORSINI et al.

(Supreme Court, Trial Term, Erie County. June 9, 1925.)

1. Attorney and client 189-Rights of client and attorney in cause of action stated.

Cause of action is property of client, and not of attorney, and attorney's lien is mere charge on it, subject to client's right to settle action in good faith, without regard to attorney's wishes.

2. Champerty and maintenance 5 (6)-Contract that, in case of settlement without attorney's consent, attorney should receive same amount as client, held void as against public policy.

Contract provision that, if settlement without attorney's consent should provide for payment of attorney's services, amount payable to attorney should equal that paid to client, plus taxable costs and disbursements, held void as against public policy, and unconstitutional, and attorney's recovery was limited to amount provided for in case of settlement with his consent.

Action by Hamilton Ward against Nick Orsini and the New York Central Railroad Company. Judgment for plaintiff against defendant last named, and complaint dismissed as against defendant first named.

Julius A. Schreiber, of Buffalo, for plaintiff.

Rann, Vaughan, Brown & Sturtevant, of Buffalo (Howard R. Sturtevant, of Buffalo, of counsel), for defendant New York Cent. R. Co. Andrew B. Gilfillan, of Buffalo, for defendant Orsini.

LYTLE, J. This is an action to establish and to enforce a lien of plaintiff as attorney upon a settlement made without his knowledge or consent. The defendant Nick Orsini was injured on the 12th day of March, 1923, while he was working for the defendant railroad company. Thereafter, on the 5th day of April, 1923, the defendant Orsini retained the plaintiff, an attorney and counselor at law, to prosecute a cause of action which Orsini claimed to have against the New York Central Railroad Company for personal injuries arising out of the accident. A written contract of retainer was entered into, which is now the subject of the controversy herein.

It appears that, pursuant to the contract of retainer, the plaintiff in this case caused an action to be brought by Orsini against the New York Central Railroad Company, and effected service of a summons upon the defendant railroad company in New York City at 10 o'clock in the forenoon of April 10, 1923. At 4 o'clock in the afternoon of the same day a settlement was made by said railroad company with Orsini, without the knowledge or consent of the plaintiff, attorney for said Orsini, at the office of the claims department of the New York Central Railroad

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

Company in Buffalo, N. Y. On the 11th day of April, 1923, the defendant New York Central Railroad Company served upon the plaintiff, Hamilton Ward, a notice of appearance.

The New York Central Railroad Company paid to Orsini in settlement of his claim, the sum of $300, and received from Orsini a general release. At the time of the settlement, Orsini gave to the New York Central claim agent, Carnes, a copy of the written contract of retainer. Carnes read the contract in the presence of Orsini, and stated that the defendant New York Central Railroad Company would pay to Hamilton Ward whatever sum the New York Central might be legally liable for to said Hamilton Ward by reason of the settlement. The New York Central thereafter offered the plaintiff herein the sum of $75, plus an additional sum equivalent to the items of costs, namely, $26.50, making a total offer of $101.50. The offer was rejected, and this action was commenced by the attorney, claiming a lien on the aforesaid cause of action and settlement in the sum of $326.50, together with interest from the 10th day of April, 1923.

The defendant New York Central Railroad Company resists the payment of the claim made by the plaintiff herein on the ground that the contract of retainer is void as against public policy. The defendant Orsini asks for a dismissal of the complaint as against him, for the reason that the defendant New York Central Railroad Company assumed, among other things, the obligation to satisfy the attorney's lien upon the cause of action.

The contract in question provides, among other things, that the client, Orsini, agrees "to pay the said Hamilton Ward 25 per cent. in case settlement is effected before any testimony is taken or before the case goes upon the ready calendar." The case did not go on the ready calendar, and no testimony was taken, as the settlement was made a day after the commencement of the action. The attorney's lien, computed upon the settlement of $300, would therefore be only a lien in the sum of $75 according to that provision of the contract.

The contract further provides:

"In case said cause of action is settled by the first party [Orsini] without the consent of the second party [Ward], then, in that case, the said first party agrees to pay said second party 50 per cent. of such settlement."

The attorney's lien, pursuant to this provision, upon a settlement of $300, would therefore amount to $150, or in effect impose an additional liability upon the client in the event that the settlement is made without the consent of the attorney.

The contract further provides:

"And if by the terms of such settlement it is agreed by the parties making the same that they will pay for the services of said attorney, then it is agreed that such percentage shall be computed on the amount of the money

(211 N.Y.S.)

paid first party and the amount to be paid second party added together, and that the sum to be paid second party shall be equal to the sum paid the first party, and that second party shall have, in addition thereto, his taxable costs and disbursements."'

Under this provision, the attorney's ́lien upon a settlement of $300 would therefore amount to an equal sum of $300, plus the taxable costs of the action.

In considering the questions herein involved, it is pertinent to refer primarily to the basis of an attorney's compensation. At common law there was some question as to the rights of an attorney to recover for his services. It was held in Stevens v. Adams, 23 Wend. 57, and Adams v. Stevens, 26 Wend. 451, that an action would lie at common law for the purpose of enabling an attorney to recover for his services. In 1848, when the Code of Procedure was enacted, all restrictions upon the part of a party to agree with an attorney for his compensation were left to the agreement, express or implied, of the parties. Laws 1848, c. 379, § 258.

In 1876, when the first part of the Code of Civil Procedure was passed, the only regulation upon the subject was the following:

"The compensation of an attorney or counselor for his services, is governed by agreement, express or implied, which is not restrained by law." Laws 1876, c. 448, § 66.

[1, 2] The history of the development of the law concerning attorney's compensation is extensively discussed in the case of Fischer-Hansen v. Brooklyn Heights R. Co., 173 N. Y. 492, 66 N. E. 395, and it was determined, among other things, by that decision, that a cause of action is not the property of the attorney, but of the client. The attorney owns no part of it, for a lien does not give a right to property, but a charge · upon it. The lien is subject to the right of the client to settle in good faith without regard to the wish of the attorney. If the construction contended for by the attorney, Hamilton Ward, were put upon the contract in question in this action, the effect would be either to impose upon the defendant Orsini an obligation to pay the attorney an additional 25 per cent., in the event of settling without the consent of the attorney, or to impose upon the defendant New York Central Railroad Company an additional 75 per cent. for settling without the consent of the attorney. If this can be legally done by the agreement which we are considering herein, it is difficult to anticipate where the limitations might ultimately be placed upon any and all settlements by contracts of this character, entered into between attorneys and clients. It would seem that, if the contentions of the plaintiff in this action could be sustained, then the way would be clear for the creation of similar percentages in similar actions, thereby enabling the percentages to reach such proportions that the result would be, not only in this action, but in contracts of a similar nature,