ENFORCEMENT OF ATTORNEY'S LIEN,-continued.

This right to resort to supplementary proceedings exists as against the assignee of a judgment assigned to him in the usual way, notwithstanding the fact that such assignee does not wish to have the proceedings instituted. Russell v. Somerville, 10 Abb. N. C. (note) 395.

And it is proper for an attorney having an unsatisfied lien upon a judgment, to institute supplementary proceedings thereon for the purpose of enforcing his lien, notwithstanding the parties have entered into a settlement and the client executed a satisfaction of judgment.

Shaunessey v. Traphagen, 13 St. Rep. 754.

Where the client is no longer owner of the judgment, the affidavit upon which the order of examination is based should, in addition to the usual allegations, show that the proceedings are instituted by the attorney for the purpose of enforcing his lien.

Merchant v. Sessions, 5 Civ. Pro. 24.

Russell v. Somerville, 10 Abb. N. C. (note) 395.

And an omission in the affidavit of an allegation of that nature has been held sufficient ground for the vacation of the order.

Russell v. Somerville, 10 Abb. N. C. (note) 395.

In the case of Moore v. Taylor, 2 How. Pr. N. S. 343, which was a case where title to the judgment had passed to a receiver, the court makes the general statement that an attorney must obtain the express consent of the court before instituting supplementary proceedings for the purpose of enforcing his lien, but this does not seem to be required by other cases, and it is doubtful if the court intended that statement to be regarded as a decision.

An attorney who has obtained a judgment for his client, has the right, by reason of his lien, to have vacated an order made in supplementary proceedings pending against his client, directing the latter to pay over the proceeds of such judgment to the creditor.

Dienst v. McCaffrey, 32 Supp. 818; 66 St. Rep. 200; 24 Civ. Pro. 238.

5. Other remedies.

An action will lie by attorneys to enforce their claim for compensation upon an award and to foreclose their lien thereon, where the client had agreed that for their services in various suits they should be paid out of any moneys recovered and have a lien thereon for the full amount of such services, and the award so sought to be charged was made to the client by an arbitrator for damages set up in one of the actions, and the claim of such attorneys is superior to that of a person who obtained, pending the action in which the award was made, a judgment against the client on a judgment previously obtained by such creditor's assignor in this state.

Williams v. Ingersoll, 89 N. Y. 508.

Attorneys who have recovered a judgment in the supreme court in favo of a client and against an administrator for damages and costs have such

ENFORCEMENT OF ATTORNEY'S LIEN,-continued.

an interest by virtue of their statutory lien as to entitle them to institute a special proceeding to compel a judicial settlement of the administrator's

account.

Close v. Shute, 4 Dem. 546.

An attorney's lien, having been established and made a charge upon a judgment recovered by the attorney for his client, may be satisfied by sale of such judgment under execution.

Van Camp v. Searle, 79 Hun, 134; 61 St. Rep. 349; 29 Supp. 757; 24 Civ. Pro. 16.

An action will lie to procure an adjudication that an attorney's claim for services is a lien upon certain assets in the hands of a permanent receiver of a corporation, and such lien may be enforced against any identified proceeds of such assets, where the directors of such corporation, upon the discharge of a temporary receiver and the transfer to them of the assets in his hands, assumed his liability to the attorney for services rendered to him, and agreed that he should have a lien upon such assets as security for its payment.

Whitehead v. O'Sullivan, 12 Misc. 577; 67 St. Rep. 801; 33 Supp. 1098.

An assignee of a part of the claim and lien of plaintiff's attorneys will be entitled to resort to a fund in the sheriff's hands obtained by moneys collected on a judgment in plaintiff's favor.

Muller v. Mayor &c. of New York, 29 Supp. 1096; 23 Civ. Pro. 261.

Where one who has assigned an attorney's lien as collateral security, but still has an interest in it, brings an action for its enforcement, the fact that the obligation, to secure the performance of which the lien was assigned, is negotiable, is no defense.

Ridgway v. Bacon, 72 Hun, 211; 55 St. Rep. 345; 25 Supp. 651.

Where a third person claims a certain share of the lien of plaintiff's attorneys, the sheriff having in his hands funds upon which such lien is a charge, should not be directed, on motion of the attorneys, to pay over to them the whole of their claim but the court should either first require an undertaking securing the claimant in the sum found due him, or, deducting from the fund that amount, direct its deposit to the credit of an action then pending by the claimant against the attorneys to establish his rights. Muller v. Mayor, &c. of New York, 29 Supp. 1096; 23 Civ. Pro. 261.

A defendant's attorney, having a lien upon a judgment for costs, in an action in which his client might have been arrested, may have the plaintiff's arrested and imprisoned by reason of the non-payment of such costs, and this is true although the plaintiff did not exercise his right to arrest the defendant, and although plaintiff had a good cause of action, but lost the suit on a mere technicality.

Parker v. Spear, 62 How. Pr. 394.

An attorney cannot be compelled to pay over a client's money in his hands

ENFORCEMENT OF ATTORNEY'S LIEN,-continued.

upon which he claims a lien for legal services, by an order granted in supplementary proceedings pending against his client.

Krone v. Klotz, 3 App. Div. 587; 73 St. Rep. 719; 38 Supp. 225; 25 Civ. Pro. 320; 3 Ann. Cas. 36.

d. In action or proceeding instituted by client.

1. To recover subject-matter of lien.

The right of an attorney to retain funds of his client in his hands until payment of his lien for services is beyond dispute, and he may have such funds set off and applied to the discharge of such lien in proceedings instituted by the client to compel him to pay over such moneys.

Maxwell v. Cottle, 72 Hun, 529; 55 St. Rep. 127; 25 Supp. 635.

And this right to retain moneys in his hands belonging to a client continues after the debt, for which the lien is claimed, is barred by the statute of limitations.

Maxwell v. Cottle, 72 Hun, 529; 55 St. Rep. 127; 25 Supp. 635.

So an order to show cause why an attorney should not pay over moneys in his hands will be refused, where the attorney claims a lien thereon for charges amounnting to as much or more than the amount in his hands, which charges are found by the court to be fair and just.

In the Matter of the Application of Knapp, 85 N. Y. 284.

An attorney may resist proceedings to compel him to deliver papers in his possession belonging to a client, upon which he claims a lien for legal services, until his claim therefor is paid.

In the Matter of H

—, and Attorney, 87 N. Y. 521.

McKibbin v. Nafis, 76 Hun, 344; 59 St. Rep. 101; 27 Supp. 723.

In a proceeding to compel the delivery of papers in an attorney's possession and on which he claims a lien for services, for which it appears some amount, at least, is due, the attorney is entitled to have determined the amount due, to be paid or deposited as a condition of the delivery of the

papers.

Taylor Iron & Steel Co. v. Higgins, 66 Hun, 626; 49 St. Rep. 645; 20 Supp. 746.

An order will not be made requiring an attorney, employed by a guardian to collect money to turn over the amount of his charges to the estate, where there is no dispute, as to his services having been rendered.

687.

Matter of Holland Trust Co., 76 Hun, 323; 59 St. Rep. 85; 27 Supp. In an action by an assignee to recover a fund taken subject to the lien of the assignor's attorneys, the amount of which latter had not been deter mined, the attorneys are entitled to have the amount of their lien determined.

Hussey v. Culver, 9 Supp. 193; 30 St. Rep. 836, aff'd 130 N. Y. 681; 29 N. E. 1035.

ENFORCEMENT OF ATTORNEY'S LIEN,--continued.

A firm of attorneys may retain moneys coming into its hands to the amount of its services in that matter and also for general services, and it may successfully resist proceedings to compel the payment of such sums, but such firm has not that right respecting services performed by an individual member of the firm in the capacity of an individual attorney.

Bowling Green Savings Bank v. Todd, 52 N. Y. 489.

An attorney for one of two joint executors has a lien on funds of the estate, coming into his possession, for services rendered in and about the administration of the estate, and may appropriate such funds in payment for his services and cannot be compelled to pay over the amount so applied. Arkenburgh v. Little, 98 St. Rep. 742; 64 Supp. 742.

Where the right of lien asserted by an attorney is clear, the amount thereof only being in dispute, the court may, upon application to compel the attorney to pay over moneys in his hands, itself determine the amount of the lien, although the items of the attorney's account are such as in ordinary cases would subject them to taxation.

In the Matter of the Application of Knapp, 85 N. Y. 284.

And this right of the court to determine the amount of the attorney's lien extends to proceedings by the attorney to set aside a satisfaction of a judgment executed by an assignee of the judgment in bad faith.

Guliano v. Whitenack, 9 Misc. 562; 62 St. Rep. 84; 30 Supp. 415; 24 Civ. Pro. 45; 1 Ann. Cas. 75.

In an action by an assignee for the benefit of creditors against attorneys to recover moneys in their hands alleged to belong to the plaintiff as such assignee, a sufficient excuse for the retention of the money is established, where it is shown that the defendants rendered certain legal services to the assignor; that after the assignment defendants were retained by plaintiff to continue the proceedings then pending; that such proceedings resulted favorably, and that the services so rendered were reasonably worth the whole amount of the money in their hands.

Ward v. Craig, 87 N. Y. 550.

The claim of a right to retain moneys in an attorney's hands, by reason of his lien, is not a counterclaim when set up in an answer to an action for the conversion of such moneys, and is not admitted by failure to reply, but such defense, in order to prevail, must be proved.

Rochester Distilling Co. v. O'Brien, 72 Hun, 462; 55 St. Rep. 149; 25 Supp.

281.

It is a matter of discretion whether or not the court will compel an attorney to pay over money to his client when the former claims a lien thereon for legal services, and an order refusing such relief will not be reversed on appeal, if it does not appear that the order was made because of want of ju

risdiction.

Schell v. Mayor, &c. of New York, 128 N. Y. 67; 27 N. E. 957.
Matter of H-

an Attorney, 87 N. Y. 521.

ENFORCEMENT OF ATTORNEY'S LIEN,-Continued.

2. Substitution of attorneys.

An attorney having a lien upon papers in his possession for undisputed services, will not be ordered to consent to a substitution of attorneys and to deliver over such papers, without satisfaction of his lien or ample protection thereof.

Prentiss v. Livingston, 60 How. Pr. 380.

Where, before the commencement of an action for the foreclosure of a mortgage, plaintiffs had an agreement with a person not an attorney, but representing himself as such by which he agreed to foreclose the mortgage for a certain amount plus the expense of sale, which person the court to permit a substitution of plaintiff's attorneys on condition that the former attorneys be paid the sum specified and that plaintiffs stipulate that such attorneys have a lien on the deficiency judgment for the balance of their claim.

Kunath v. Bremer, 53 App. Div. 271; 99 St. Rep. 830; 65 Supp. 830.

A surrogate's court has no jurisdiction to enforce payment of an attorney's lien upon substitution of attorneys in a proceeding in which a decree of such court has been duly made and entered and an appeal has been taken therefrom to another court.

Estate of Hoyt, 5 Dem. 432; 8 St. Rep. 786; 12 Civ. Pro. 208; 26 Week. Dig. 373.

Where there had been a substitution of attorneys on condition that the former attorney should have a prior lien on any judgment obtained, it is proper for the court, upon settlement and payment of the moneys to the second attorney, to direct the plaintiff and the latter attorney to pay over to the other attorney the sum so allowed him.

Cregier v. Cheesbrough, 25 How. Pr. 200.

An order of substitution of attorneys, in which the former attorney is directed to surrender all papers in his possession belonging to his client, should provide for payment for his services.

City of Philadelphia v. Postal Telegraph Co. 1 App. Div. 387; 72 St. Rep. 617; 37 Supp. 291.

Where it is doubtful whether at attorney has just claim against his client for fees and costs, and the client offers to give security for the amount shown to be due, substitution should be allowed and the attorney should be ordered to deliver up, on such security being given, papers on which he asserts a lien. Cunningham v. Widing, 5 Abb. Pr. 413.

A party will not be permitted to withdraw an application for substitution of attorneys, in which a reference has been ordered to determine the terms to be imposed and the amount of the attorneys' lien and the referee has recommended payment of certain sums and the giving of security, but the report should be confirmed so far as found correct.

Matter of Davis, 7 Daly, 1.