The only question presented upon this appeal is as to whether plaintiffs can assert and have impressed upon the specific real property involved in the long legal controversy a lien for such balance as may be ascertained to he their due for professional services rendered therein. It is not for us to determine upon this appeal as to whether the amount claimed by the plaintiffs is excessive, but merely as to whether the plaintiffs have a right to maintain this action, rather than to proceed against defendants in an action at law.
Unless plaintiffs can maintain this action they are in danger of being deprived of the fruits of their labor by a conveyance of the property sought to he impressed with their lien. The question, therefore, is: Have the plaintiffs an equitable lien on this real property which through their efforts has been reserved to defendants ? It is not primarily the statutory lien under section 475 of the Judiciary Law (Consol. Laws, chap. 30; Laws of 1909, chap. 35) which plaintiffs claim. It is a lien which they assert under broad principles of equity. It is not dependent upon litigation pending, for that is successfully terminated and its fruits absolutely in the hands of the clients. There can be no question but that under the statute plaintiffs would have an attorney’s charging lien upon the proceeds of the litigation if in money or other tangible personal form in whosesoever hands it might he found. (Matter of Knapp, 85 N. Y. 284.)
Such lien could he enforced by an action in a court of equity. (Matter of King, 168 N. Y. 53; Fischer-Hansen v. Brooklyn Heights R. R. Co., 173 id. 492.)
In the Fischer-Hansen case Judge Vann says: “ The statute [Code Civ. Proc. § 66; now Judiciary Law, § 475] is *611remedial in character, and hence should be construed liberally in aid of the object sought by the Legislature, which was to furnish security to attorneys by giving them a lien upon the subject of the action.” (See, also, Goodrich v. McDonald, 112 N. Y. 157.) The leading authority I believe in this State which has passed upon the precise question here, is the case of West v. Bacon (13 App. Div. 371), and is a case which seems to have escaped the attention of the attorneys herein. It is a decision of the First Appellate Division and the prevailing opinion, written by Patterson, J., is concurred in by Rumsey and Williams, Associate Justices, Van Brunt, P. J., dissenting.
In that case, as here, an attorney was endeavoring to impress a lien for professional services upon real property which had been the subject of the litigation and which his services had served to preserve to his client. The court held that the attorney was entitled to enforce his lien against the land, as the proceeds of the suit.
It is true that the judgment in that case was modified on appeal by the Court of Appeals. (164 N. Y. 425.) But the Court of Appeals did not pass upon the question as to whether the lien of an attorney might be asserted against the land, but held that plaintiff’s lien for services had been lost by a written waiver, theretofore executed by him. The decision of the appellate court was thus left unquestioned as to the right of the attorney to impress his lien upon the real property if it had not been expressly waived.
The case of West v. Bacon has been cited with approval in more recent decisions. (Skinner v. Busse, 38 Misc. Rep. 266; Cohn v. Polstein, 41 id. 434; Matter of Jones, 76 id. 332.)
In the case last cited Mr. Justice Blaokmar says: “ If, however, the client’s claim or cause of action is merged in a judgment there is nothing for the hen to attach to except the judgment or its proceeds. In the case of Sandiford v. Town of Hempstead [at bar] if the judgment established the plaintiff’s right to any land or protected him in its enjoyment, as it undoubtedly did, the attorney who conducted the litigation for him would have been entitled to a lien on the land as the proceeds of the judgment establishing plaintiff’s claim to it as against the defendant.”
*612These cases are the only ones that I have been able to discover where the question involved upon this appeal was passed upon, and I think indicate quite clearly that the trend of judicial decision in this State is to uphold an attorney’s lien upon land for services rendered in preserving it to his client.
I think the order at Special Term denying defendants’ motion for judgment upon the pleadings should be affirmed, with costs to the respondents.
Kruse, P. J., concurred.
Order reversed, with ten dollars costs and disbursements, and defendants’ motion granted, with ten dollars costs.