Surrogate's Court.

2. SAME ENFORCEMENT BY SURROGATE'S COURT.

[Nov.

The surrogate's court has jurisdiction to allow and enforce an attorney's lien for services against a decree procured therein.

Application by attorneys for the legatees of John Feehan, deceased, to enforce their lien on a surrogate's decree settling the final account of James Regan, executor, and directing a fund to be paid to the legatees. Lien allowed.

Adams & Hyde, for petitioners.

Bernard J. Tierney, for executor.

VARNUM, S. In this matter it appears that a decree was entered in December, 1898, judicially settling the accounts of the executor herein, and under the terms of which the accountant was directed to distribute some $7,000 among five legatees under the will, and also pay to them a bill of costs amounting to

ATTORNEY'S LIEN IN SURROGATE'S COURT,-continued.

The learned surrogate based such ruling on the converse of what was decided in Flint v. Van Deusen, 26 Hun, 606, which denied such lien because at that time the surrogate's court was not a court of record, that court having in the meantime been made a court of record.

This view of surrogate Rollins was disapproved by surrogate Coffin in Smith v. Central Trust Co. 4 Dem. 75. (March 1886). The expressions of both surrogate on the question were obiter dicta.

As a construction of § 66 of the Code of Civil Procedure, as it stood before Sept. 1, 1899, the view of surrogate Coffin was undoubtedly correct. All proceedings in surrogates' courts are special proceedings and § 66 of the Code of Civil Procedure did not apply to special proceedings till after the amendment of 1899.

If, however, the view expressed in the case in the text is correct and the attorney's lien attaches in special procedings irrespective of the statute, such lien is secure in cases begun prior to the amendment of 1899 and, in cases since that amendment, it is doubly assured.

Surrogate Rollins adverted to the difference of opinion between himself. and surrogate Coffin in the Matter of Hoyt, 5 Dem. 432; 8 St. Rep. 786; 12 Civ. Pro. 208; 26 W. Dig. 373; but adhered to his view of the question..

nearly $600. Shortly afterwards the parties interested came to some settlement, and the decree was satisfied of record. The attorneys for these legatees now make application to set aside the releases and satisfactions made by their clients to the extent of permitting the petitioners to enforce an alleged lien for services on the decree. They show that the executor was personally served with a notice of lien; that the settlement made was brought about without their knowledge; that they thereafter attempted to collect their bill for services without success; that they subsequently brought an action in the city court of the city of New York against their clients, which resulted in a judgment of $2,083.24,-a sum which fixes the value of the services rendered, and the collection of which they now wish to make by enforcing the decree of this court. The answer of the executor does not, in my opinion, throw any doubt on these facts, and the only serious question at issue is whether this court has jurisdiction to entertain the application. The petitioners contend that

ATTORNEY'S LIEN IN SURROGATE'S COURT,-continued.

Surrogate Rollins protected the lien of the attorney for a party to a proceeding to compel executors to account, upon an application to discontinue the proceeding in Matter of Fernbacher, 18 Abb. N. C. 1 (1886), 5 Dem. 219.

Surrogate Coffin refused, in Matter of Halsey, 13 Abb. N. C. 353, to require payment for his services to be made by an executrix to her attorney, as a condition of the substitution of another attorney. (Nov. 1883).

This was on the ground of lack of power. Surrogate Rollins had, however, reached a directly contrary conclusion in Chatfield v. Hewlett, 2 Dem. 191. (Aug. 1882.)

An attorney einployed by the executrix to procure probate of the will has no lien for such services on bonds, stocks and other personal property belonging to the estate which have come into his hands.

De Lamater v. McCaskie, 4 Dem. 549.

Where an attorney claims to hold property delivered to him by an executrix on the ground that he has a lien thereon for services, the surrogate is not ousted of jurisdiction of a proceeding to compel him to deliver up such property unless his answer alleges the facts necessary to sustain his claim to such lien. The mere statement that he has an attorney's lien for services is insufficient.

De Lamater v. McCaskie, 4 Dem. 549.

they are entitled to the relief prayed for by virtue of section 66 of the Code of Civil Procedure, which reads as follows:

"The compensation of an attorney or counselor for his services is governed by agreement, express or implied, which is not restrained by law. From the commencement of an action or special proceeding, or the service of an answer containing a counterclaim, the attorney who appears for a party has a lien upon his client's cause of action, claim or counterclaim which attaches to a verdict, report, decision, judgment or final order in his client's favor, and the proceeds thereof in whosesoever hands they may come, and the lien cannot be affected by any settlement between the parties before or after judgment or final order. The court, upon the petition of the client or attorney, may determine and enforce the lien."

So much of this section as relates to a lien predicated of a claim in a special proceeding, which lien attaches to a final order, was added by an amendment which went into effect on September 1, 1899. Shortly prior to the passage of this amendment it was held that section 66 did not apply to a special proceeding. In re Lexington Ave. 30 App. Div. 602; 86 St. Rep. 203; 52 Supp. 203, affirmed without opinion in 157 N. Y. 678; 51 N. E. 1092. As the decree in the estate herein was entered in December, 1898, the present application being made in July, 1899, it follows that petitioners cannot be aided by the latest amendment to this section. It is further contended, however, that, aside from the statutory lien created by the Code, a common-law lien for the services of the applicants attached to the decree herein. There can be no doubt that the recognition by our courts of the liens of attorneys is based on a source other than that of statutory enactment. Before the year 1879, section 66 of the Code was merely to the effect that the compensation of attorneys for their services was governed by agreement, express or implied, in nowise restrained by law. In that year the portion of the section was added, which gave to an attorney a lien upon the cause of action from the commencement of the action. This was something additional to what the common law gave to him, and was in the nature of an enlargement, and not an abridgment, of the lien hitherto recognized and enforced. In re Lazelle's Estate, 16 Misc. 515; 40 Supp. 343. Before that

time the charging lien of an attorney only attached to the judg ment which represented the fruit of his labors, and did not extend to his client's naked claim, but to that extent the lien did not rest on any statute. It was thus distinctly recognized in the time of Lord Mansfield (Welsh v. Hole, 1 Doug. 238), and our court of appeals has enforced it independently of any legislative act. Goodrich v. McDonald, 112 N. Y. 162, 19 N. E. 649. In that case the court says:

"If the thing recovered was in a judgment, and notice of the attorney's claim had been given, the court would not allow the judgment to be paid to the prejudice of the attorney. If paid after such notice, in disregard of his rights, the court would, upon motion, set aside a discharge, and allow the attorney to enforce the judgment by its process, so far as needful for his protection."

So far as concerns the recovery of an attorney's costs, the judg ment itself is notice, but, if he would enforce his lien further, and recover for his services beyond costs, actual notice of the lien must be given. Marshall v. Meech, 51 N. Y. 140, 143. Such a notice has been given in the present case. It will therefore be evident that, irrespective of section 66 of the Code of Civil Procedure, the lien of an attorney, so far as enabling him, upon adopting the proper procedure, to enforce a judgment for the payment of his services, must be deemed as clearly established. The question at once presents itself of whether such a lien attaches to the results of a proceeding which does not terminate in a judgment. In the case of In re Lexington Ave., supra, an attorney rendered services in a proceeding wherein his client's land was taken for street-opening purposes. An award was made fixing a certain sum as compensation. The attorney claimed a lien on this fund in the hands of the city for his services, and attempted to have the amount thereof determined. As I said above, the court held that no relief could be afforded under section 66 of the Code, as the matter was a special proceeding. While recognizing the lien of an attorney at common law, the court further held that, in view of the fact that the court had no fund under its control, and had entered no judgment, the

award being simply a debt from the city to the client, which the latter could enforce by a civil action, no jurisdiction existed to determine in a summary way the value of the attorney's services and give him judgment therefor. The court expressly declined to decide whether or not there was a lien on the award, but holds that, if such a lien existed, the attorney should have brought an equitable action against his client and the city to have the amount determined. It will be observed that in the present application I am not asked to determine the value of the petitioner's services, that question having been determined by the city court, and the difficulty that was presented in the case just discussed does not, therefore, exist here. And see, also, Bailey v. Murphy, 136 N. Y. 50; 32 N. E. 627. In the case of In re Knapp, 85 N. Y. 284, 295, the court goes in to the question of whether an attorney's lien attached to the result of a proceeding brought before a legislative commission created to hear and determine claims for services rendered in building armories in New York City, and holds that, although no judgment could follow, and therefore section 66 of the Code of Civil Procedure might not strictly apply, yet the case of an attorney claiming a lien would come under the purpose of that section, and "within the principle of the common-law doctrine." The case of Ormerod v. Tate, 1 East, 464, is cited, wherein it was contended that the lien of an attorney extended only to judgments, and not to moneys recovered by arbitration. But Mr. Justice Kenyon held otherwise, placing his decision upon "the convenience, good sense, and justice of the thing." And this doctrine seems to be further approved by our court of appeals in Re HN. Y. 381. The theory upon which the lien of an attorney was based originally rested mainly upon the equity or justice of the common law as interpreted by the courts, and not upon any fixed rule or legal principle (In re Knapp, supra; Coughlin v. N. Y. Cent. & H. R. Railroad Co. 71 N. Y. 443, 448), and to my mind there is no reason why this right should not attach, irrespective

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