Rooney v. . Second Avenue Railroad Company

It is not claimed that the order appealed from is erroneous, provided the attorney for the plaintiff had a lien on the judgment for his costs. The defendants had sufficient notice of the lien, if it existed, to protect him against a settlement with his client. The question, therefore, is whether the Code of Procedure has abrogated the lien of an attorney for his costs. Section 303 declares that all statutes establishing or regulating the costs "and fees of attorneys, solicitors, c., in civil actions, and all existing rules and provisions of law restricting or controlling the right of a party to agree with an attorney,c., for his compensation are repealed, and that the measure of such compensation *Page 372 shall be left to the agreement, express or implied of the parties." "But," the section further declares, "there may be allowed to the prevailing party, upon the judgment, certain sums by way of indemnity for his expenses in the action, which allowances are in this act termed costs." Sections 304, 305 and 306 prescribe the cases in which costs may be recovered, and section 307 specifies the particular rates, being specific sums supposed to be earned in the different stages of a cause.

In this legislation I discover nothing which deprives an attorney of his lien for costs. Previous statutes establishing or regulating costs and fees are repealed, but in their place a new statute is enacted, prescribing different rates of compensation, and adjusted upon a different principle. But the legislation of this state has frequently undergone changes of the same kind, and relating to the same subject, without impairing the lien of the attorney. It is said that costs are now allowed to the party as "an indemnity for his expenses in the action." But this was always the essential nature of costs. The prevailing party recovered them of his adversary, and they became a part of his judgment. They were always, in substance, an indemnity for expenses; although, before the Code, they were taxed under the name of attorney's and solicitor's fees. The name given to this indemnity is of no account. The fee bill is abolished, but that was never the foundation of the lien. It might regulate the amount of an attorney's compensation, but he was entitled to a lien as against his client, because his labor and skill contributed to the judgment. On the same principle he had a lien on his client's papers for services, where there was no suit or judgment against another party; and this principle does not differ essentially from that which confers a lien in a variety of the industrial pursuits of mankind. Lord KENYON said (Read v.Dupper, 6 Term R., 362), "the principle was decided long ago, namely, that a party should not run away with the fruits of a cause without satisfying the legal *Page 373 demands of his attorney, by whose industry, and in many instances, at whose expense, those fruits are obtained."

Section 303 of the Code, above quoted, abrogates all rules and provisions of law which might restrain an attorney in agreeing with his client for the measure or mode of his compensation, and it leaves such compensation to the agreement of the parties, express or implied. What was before not only illegal but disreputable is now lawful, if not respectable. But this provision can have no influence upon the present question. If there is a special agreement that will take the place of the preëxisting statutory rates, I am not able to see how this affects the attorney's lien, where no special security is taken, and there is no assignment of the cause of action or of a part of it. If there be no such agreement, then the implied undertaking of the client will be, to pay either what the services of his attorney are reasonably worth, or else the particular sums which the Code specifies, in the different periods of the litigation. It is not important now to determine what may be the implied agreement of the client with his attorney. In either of these aspects there is no reason for questioning the lien. The attorney contributes his services and skill in the management of his client's case. The result is a judgment with costs, and the attorney has an interest in the judgment either to the amount of those costs, or for some other amount which he is entitled to claim as the measure of his compensation. The principle which lies at the foundation of this lien is by no means an anomalous one, and I do not perceive that it is inconsistent with any of the provisions of the Code. The order should be affirmed.

All the judges concurring,

Order affirmed. *Page 374