McKenzie a. Rhodes. tion, the demurrer must be overruled, with leave to the defendants to answer in twenty days. In case the plaintiff amends his complaint, the costs of the demurrer will abide the event of the action. Otherwise, the order will direct the payment of costs by the defendants. MCKENZIE a. RHODES. Supreme Court, First District; General Term, Sept., 1861. ATTORNEY'S LIEN FOR COSTS.* Where, in an action by a husband against his wife and others, to set aside conveyances, by the husband, of property to a third party, and by the third party to the wife, in which action a. receiver of the property conveyed had been appointed, the attorney for the wife had received no compensation for his services, and had in addition rendered himself liable to pay fees of counsel associated with him in the suit at the wife's request, and the parties to the action had settled the suit with notice to the wife's attorney, who then expressed his willingness * In DE GRAW a. BOARDMAN (Supreme Court, First District, Chambers, August, 1861), it was Held, that where defendant shows, in answer to an application for an attachment for not complying with an order in supplementary proceedings, that he has settled the judgment with plaintiff, the court will not look beyond the papers to see if the attorney's lien has been disregarded. LEONARD, J.-The plaintiff moves for an attachment on affidavit, showing that the defendants failed to appear at the return-day of proceedings supplementary to execution. The defendants show, by affidavits, etc., that before the return-day they settled with the plaintiff and obtained a satisfaction-piece of the judgment from him, duly executed. This is all that appears from the papers. I cannot look outside of the papers to ascertain whether the lien of the plaintiff's attorney, for his costs, has been disregarded in the settlement. The motion is denied, without costs. In four cases of THE EAST RIVER BANK a. KIDD (Supreme Court, First District, Chambers, October, 1861), it was Held, that section 293 of the Code, which provides that after the issuing of execution against property, any person indebted to the judgment-debtor may pay to the sheriff the amount of his debt, or so much thereof as shall be necessary to satisfy the execution, does not deprive an attorney of his lien for costs on a judgment in favor of such judgment-debtor. The cases came up on a motion to vacate a certain modification of an order of VOL. XIII.-22 McKenzie a. Rhodes. to waive compensation for his services if the sums in which he was liable to his associate counsel and his disbursements were paid him:-Held, on appeal by the wife's attorney from orders discontinuing the action and discharging the receiver, that the orders must be vacated unless the plaintiff consented to pay disbursements and counsel-fees for which the wife's attorney was liable or which he had paid. discontinuance. It appeared that on the 21st day of August, 1861, the plaintiffs procured an order of court ex parte, that the plaintiffs have leave to discontinue the four actions, and that the plaintiffs pay to the defendants named in the order their costs to be taxed. The costs were adjusted, when the plaintiffs, under section 293 of the Code, sought to pay the judgments to the sheriff upon an execution against the defendant in favor of one Jenkins. The defendant's counsel then obtained, ex parte, an order modifying the order above recited so far as to direct the plaintiffs to pay to defendant's attorneys the costs to be taxed. Plaintiffs then made this motion to vacate such modification. Banks & Anderson, for the plaintiffs.-I. In this case execution has been issued by Charles Jenkins; and by section 293 of the Code, the plaintiffs had the right to pay the debt to the defendant, to the sheriff on that execution. The court will not, on motion, deprive the plaintiffs of a statutory right. II. The cases cited by defendant's counsel only show that on a motion the court will refuse to interfere to the prejudice of the attorney's lien. In this case the defendants ask the court to go much further; they ask the court to direct a satisfaction of the lien. III. In a motion which is in the discretion of the court, it may refuse relief in furtherance of a statutory right where such right is not favored; but it has no power to grant a motion which will deprive a party of such statutory right. IV. The order directing payment to the defendant's attorneys should be vacated, and the parties left to their rights under execution and under the statutes. G. Sackett, for the defendant.-This is not a case of set-off, but it was formerly held in cases of set-off that one judgment would not be set off against another, as between same parties, so as to prejudice the attorney's lien for costs (Cole a. Grant, 2 Cai., 105; Devoy a. Boyer, 3 Johns., 247); and it is so now in the Superior Court. (Smith a. Lowden, 1 Sandf., 696; Gihon a. Fryatt, 2 lb., 638.) This rule was changed in Nicoll a. Nicoll (16 Wend., 446), giving the statute of set-off a more imperative construction as between parties mutually holding judgments against each other. (See, also, Martin a. Kanouse, 17 How. Pr., 146; 9 Abbotts' Pr., 370, note.) The changing of this rule does not in any way affect the case in question; the attorney's lien would still be protected on motion, though it cannot be recognized in an action to procure a set-off by reason of the statute. In the cases in question the statute of set-off is not applicable; the judgment-debtor insists on the right to pay the judgment for costs to a third party, and asks the protection of the court in so doing. The judgment in this case equitably belongs to the attorney, and he is entitled to all the rights of an assignee. (Wilkins a. Batterman, 4 Barb., 47; Ainslie a. Boynton, 2 lb., 258.) And no equity whatever can be violated by directing payment to the attorney. The case of Sherwood a. Buffalo & N. Y. City R. R. Co. (12 How. Pr., 136) is claimed as a case directly in point, to the effect that the attorney's lien for costs is paramount to the claim of a third party having a judgment. CLERKE, J., on this ground, denied the motion, without costs. McKenzie a. Rhodes. Appeal from orders discontinuing action, and discharging the appointment of receiver. This action was commenced in August, 1859, to set aside two conveyances made on the 10th and 11th November, 1857, by which the leasehold property, No. 765 Broadway, in the city of New York, was assigned by the plaintiff to Rhodes, and by Rhodes to Jane McKenzie, who was the wife of plaintiff. The property was worth about $35,000, and at the time of the conveyance was mortgaged for $8,500. About seven months after the assignment of the property to her, Mrs. McKenzie left her husband, and commenced an action against him for a limited divorce, on the grounds of cruelty, drunkenness, &c.; he defended the action, and demanded a divorce from her on similar charges. After a protracted litigation, it was determined by the court, that no cause for divorce appeared on either side, and the complaint was dismissed. The present action was commenced while the divorce suit was pending the plaintiff alleging that the conveyances by which the title to the property was transferred to his wife were made without consideration, and while he was in a state of complete intoxication, induced by his wife, for the purpose of obtaining the conveyances. In the month of October, 1858, Mrs. McKenzie employed Mr. Samuel J. Glassey, as her attorney and counsel, to prosecute her action for divorce, and defend her in the various suits and proceedings, about being commenced, in relation to the property in question. From that time, until October, 1860, he continued to act on her behalf, together with Mr. C. N. Emerson and Mr. James T. Brady, who were employed by him at Mrs. McKenzie's request. In the action to set aside the conveyances of the property in Broadway, a receiver was appointed to collect the rents, and deposit it in the U. S. Trust Co. The action was brought on for trial at the November special term, 1859, before Mr. Justice Ingraham, who ordered special issues to be made up, and tried before a jury at the circuit. At the circuit in January, 1860, the issues were tried, and the jury disagreed. In February succeeding, a second trial was had, and the jury found a verdict for the plaintiff on all the issues. McKenzie a Rhodes. The plaintiff immediately applied for judgment, and the defendant (Mrs. McKenzie) moved for a new trial, on the ground that the verdict was against evidence. Mr. Justice Allen, who presided at the circuit, ordered both motions to be heard together at the special term, and stayed proceedings in the mean time. The case was argued at the special term in June, 1860, before Mr. Justice Sutherland, by Messrs. McKeon and Noyes for the plaintiff, and Mr. James T. Brady and Mr. Glassey for Mrs. McKenzie. No decision had been rendered up to September, 1860, when Mr. and Mrs. McKenzie met at Stamford, Conn., settled their personal quarrels, and Mrs. McKenzie executed a reconveyance of the property in dispute. This settlement was made without the knowledge of any of Mrs. McKenzie's counsel, and no provision was made for the payment of their fees, costs, or disbuements. Being informed of it by letter, Mr. Glassey sent to Mrs. McKenzie a letter, in which he expressed satisfaction at the settlement being made, suggested the propriety of her providing for the payment of the disbursements incurred, and the counsel-fees due by her to other persons; and expressing a willingness to release her from all claim for his personal services. After this letter was sent, it appeared that Mrs. McKenzie had consented to the withdrawal of the money deposited with the receiver, and both parties refused to make any provision for the payment of either costs, counsel-fees, or disbursements. Mr. Glassey, upon learning this, commenced proceedings to secure his own and his associates' fees. Upon his motion, the receiver was required to repay into the Trust Co., some $1,500, which he was about paying to Mr. McKenzie, on his wife's order. The money being in the Trust Co., the plaintiff moved at special term to be allowed to discontinue the action, without costs, and to withdraw the money from the Trust Co. The receiver applied to be discharged. The motions were based upon the facts above stated, and Mrs. McKenzie, the defendant, joined in them. The motions were heard together at the special term, and decided in favor of the plaintiff, the following opinion being rendered by the court. This action has, in fact, been settled by the parties. The de McKenzie a. Rhodes. fendant has reconveyed to the plaintiff the property in controversy, and she has, in writing, consented that the moneys which were in the hands of the receiver, $1,500 of which has been deposited by him in the U. S. Trust Co., should be paid to the plaintiff. The papers do not show satisfactorily that this settlement was brought about by undue influence on the part of the 'plaintiff, or that the settlement was the result of a fraudulent conspiracy between the parties to defraud the attorney of the defendant of his costs. If the attorney of the defendant has no lien for his costs upon the fund so deposited in the Trust Company, the motions made on the part of the plaintiff for an order that the moneys so deposited in the Trust Company, and the balance in the hands of the receiver, should be paid to him, and for an order of discontinuance of the action, on the written consent of the parties. should be granted. It is very clear that the attorney for the defendant can have no lien on this fund for his costs. There has been no judgment in the action determining the fund to belong to the defendant, By the settlement, the defendant has admitted the right and title of the plaintiff to the property and fund in question. Surely the attorney for the defendant has no lien for his costs on the property of the plaintiff. An attorney has a lien for his costs on the papers of his client, which may come into his hands in the prosecution or defence of the action, and, under certain circumstances, on the amount which his client may recover in the action; but if his client never recovers any thing, this lien must be confined to the of his client, which may have come into his hands in the prosecution or defence of the action. papers. In this action, the question was, whether the defendant had fraudulently and improperly obtained a conveyance of the property in question from the plaintiff: if she had, then the property was the property of the plaintiff, notwithstanding his conveyance to her; if she had not, then the property was her property so that you may say the question in the action was, whether the property was the plaintiff's or the defendant's. The parties certainly had a right to settle this controversy; and they have settled it before judgment. |