I am unable to concur in the prevailing opinion. If it be assumed that the plaintiff, as attorney for Elizabeth Schlesinger, as administratrix of Mark Schlesinger, had a lien for his services upon the amount decreed to be paid to her on the accounting, I do not think he is in a position to enforce such lien in *506this action. After the decree had been made in the Surrogate’s Court with reference to the fund in question, Leo Schlesinger brought an action against Elizabeth Schlesinger; as administratrix of Mark Schlesinger and Baldwin Schlesinger, as executor, etc., of Abraham Schlesinger, to procure a judgment establishing his right to such fund. The plaintiff in this action appeared as attorney for the administratrix in that action. He then knew that he claimed to have a lien upon the fund sought to be recovered in that action, and yet he did nothing towards establishing or enforcing the same. He did not ask to be made a party to the action, nor, so far as appears, did he call the court’s attention in any way to the fact that he claimed to have a lien upon the fund for services rendered to the administratrix on the accounting. The fact doubtless is that he expected his client would succeed in the action and if so his lien, instead of being lost or destroyed, might be increased. Whatever may have been his reason for not intervening in that action, and having his lien established, the fact remains he did not do so but sat quietly by and permitted the court to render a judgment, in ignorance of his lien, awarding the entire fund to the plaintiff in that action; and also enjoining his client, the administratrix, “ from enforcing the collection of the said sum awarded by the decree of the surrogate ” until the amount found due the plaintiff had been “fully paid and discharged.” The judgment also enjoined Baldwin Schlesinger, as executor, etc., of Abraham Schlesinger, from paying over to this plaintiff’s client any sum then adjudged, or that might thereafter'be adjudged to be due to the estate which she represented until the amount found due the plaintiff in the action had been fully paid.
I am of the opinion that the plaintiff, by reason of his own acts in the Leo Schlesinger action, is estopped from asserting a lien upon the fund referred to. But if I am wrong in this, I do not see how he is in a position to enforce his lien, even though it be established, until the judgment rendered in the Leo Schlesinger action has been set aside or modified in some way, so far as the fund is concerned. That judgment, as we have already seen, restrains the executor of the Abraham Schlesinger estate from paying any sum whatever to the administratrix of *507Mark Schlesinger, or her paying out that sum until the amount awarded the plaintiff in that action has been fully paid.
For these reasons I vote to affirm the judgment.
Laughlin, J., concurred.
Judgment reversed, with costs, and judgment ordered for plaintiff as stated in opinion. Order to be settled on notice.'