Longyear v. Carter 34 N.Y.S. 785

HERRICK, J.

We are of the opinion that no lien exists in this case, in favor of defendant’s attorney, that prevents a settlement between the parties. By chapter 542 of the Laws of 1879, section 66 of the Code of Civil Procedure was so amended as to give attorneys a lien upon their clients’ causes of action, before judgment, Avhich could not be affected by any settlement betAveen the parties. To bring himself within this section, the defendant’s attorney should have shown that the defendant had set forth a cause of action by way of a counterclaim in her ansAver to the plaintiff’s complaint. That is the only thing that would give him a lien before judgment. It is incumbent upon him to allege and prove those matters which entitle him to a lien. None having been set forth in the motion papers herein, we must assume that no counterclaim was alleged in the defendant’s answer, and that, therefore, there was nothing to which the defendant’s attorney’s lien could attach before judgment. His claim, therefore, must rest upon the liens of attorneys as they existed at the common law. Pierson v. Safford, 30 Hun, 521; Levis v. Burke, 51 Hun, 71, 3 N. Y. Supp. 386; Bevins v. Albro (not yet officially reported) 33 N. Y. Supp. 1079. At common law an attorney had no lien before judgment, and the parties were at liberty to settle between themselves, and such settlement would not be disturbed unless it was shown that it was made collusively, and for the purpose of defrauding the attorneys out of their costs. Randall v. Van Wagenen, 115 N. Y. 527, 22 N. E. 361. There is nothing in the record before us to show that there was any fraud or collusion between the parties for the purpose of defrauding the attorneys, or either of them, out of their costs. In passing, it may be well to observe that the case of Randall v. Van Wagenen, supra, was decided upon an alleged cause of action that arose in 1887, prior to the amendment of the Code herein referred *786to, which extended the liens of attorneys; and the decision of the court in relation thereto is therefore not an interpretation of the Code as it has existed since 1879, and consequently such decision is not in conflict with anything herein set forth as to the extent of an attorney's lien. The order appealed from should be reversed, with $10 costs and disbursements. All concur.