The amount of the compensation to which the plaintiff is entitled as attorney and counsel in the original action was not stipulated between the attorney and his client ; and as the amount is disputed by the party (Lawrence M. Fox) it was doubtless proper that it should be ascertainod in an action at law. There is some question whether the lien of the attorney ought to be protected beyond the taxable costs, (Haight v. Holcomb, (16 How. Pr. Rep. 173,) or the amount stipulated as compensation between the attorney and client. (Rooney v. Second Avenue R. R. Co., 18 N. Y. Rep. 368.) It would be an extraordinary proceeding to tie up the collection of the judgment until the attorney could go into a court of law and recover another judgment against his client fixing the amount of his compensation in the original suit. There is no precedent for such a proceeding, and I shall not consent to aid in establishing it. Still I think it is a matter of discretion with the court in which the judgment is obtained, whether they will interfere to stay its collection or not. Upon an affidavit showing the amount claimed, the court of *445king’s bench in one case directed so much of the judgment as would be necessary to pay the same to be brought into court to await the taxation of the attorney’s bill. So here, it was competent for the attorney in the original action, after judgment, to apply to the court to protect his lien; and I think the court could interfere and direct a sufficient sum, proceeds of the judgment, to be brought into court to await an action at law between the attorney and client to settle the amount. But there is no authority for making the costs of other suits a lien upon this judgment. And it should be a clear case which would justify the court in which the judgment is obtained in detaining the funds until the attorney had time to sue his client and obtain another judgment for his costs. The court, I think, may refuse it in all cases. It is said, per Curiam, in Barrett v. Barrett, (8 Pick. 343,) “ This is a question addressed to the discretion of the court.” But I see no reason why the court does not possess the power in such cases, as well- as when the compensation is stipulated. The client might deny the agreement, and then an action at law or a reference would become necessary before the court could know what sum should be paid over to the attorney.
In the case at bar there was no agreement as to the amount of the compensation; but it is alleged that the attorney was to be paid his fees, expenses, &c. out of the claims which entered into the judgment. The amount being disputed, it was suggested by the learned judge who gave the opinion in Fox v. Fox, (24 How. 417,) that there was “ no difficulty in settling the amount and having it declared a lien on the judgment. If there be no short way of accomplishing this, there remains the usual way by direct action for that purpose.” I have examined a great many cases in this country and England, and have not yet found one where such an action was brought for such a purpose. * I think this is an experiment under the code, and that there is no necessity whatever for such an action. The court in which the judgment is obtained may doubtless direct the proceeds, sufficient for that purpose, *446to be brought into court until an action is brought, to determine the amount of the attorney’s lien, when such an action is necessary. This affords all the protection proper in any case.
I conclude, therefore, that Peter Fox, the executor, against. whom the judgment was obtained, is an unnecessary party to this action, and that the plaintiff has an adequate remedy against him in the original action. The defendant here, Peter Fox, has done nothing to justify an action against him, and ought not to be harassed with another suit in which he can have no adverse interest. His position is that of a neutral, unless he pays the amount in his own wrong after notice of the lien. It may be that an execution cannot issue against the executor without the order of the surrogate; but when issued, it is under the direction and control of this court. There is nothing in the complaint to show that the executor has attempted to collude with the judgment creditor to cheat the attorney out of his costs, or that there is any special reason for invoking the assistance of a court of equity to give effect to the lien. Nor am I prepared to admit that the lien is of such a character as to lay the foundation for another suit in equity to enforce it. , '
I do not propose to enter into a discussion of its origin— but all the cases in this country and England treat it as an' equitable claim to be protected in the court in which the judgment is obtained—a claim to the equitable interposition of the court, which the court may exercise towards its officers and towards parties already within its jurisdiction. The plaintiff in the case at bar, calls himself the assignee of the judgment by virtue of his lien for costs. But this claim is not strictly correct and cannot be acceded to without considerable explanation and qualification. In Martin v. Hawks, (15 John. 407,) Spencer, J. in discussing the question, speaks of the attorney as one who “ stands in the same equity as he ■ would have done had the judgment been assigned to him.” Justice Greene, in delivering the opinion of'the court in Sherwood v. The Buffalo and N. Y., City R. R. Co, (12 How. *447Pr. Rep. 189,) calls it a claim in the nature of a lien. In Reed v. Duffee, (6 T. R. 362,) Lord Kenyon, Ch. J. observed : “ This lien has been likened to an assignment of a chose in action, which in strictness cannot be done.” In Platt v. Jerome, (19 How. U. S. Rep. 334,) the court refused to protect the attorney as an assignee of the judgment, in respect to his lien for costs. Mr. Justice Kelson, who delivered the opinion of the court, says: “ Ko doubt if either party had assigned his interest to a third person, by which such third person had become possessed of the beneficial interest, and the party to the record merely nominal, the court would protect such interest and give him the control of the suit. * * * The attorney, however, even if he has a lien on the judgment according to the course of proceedings in the court where it was recovered,” stands in a different situation. It was said by Park, B. in Barker v. St. Quintín, (12 Mee. & Wels. 451,) “ The lien which an attorney is said to have on a judgment, (which is perhaps an incorrect expression) is merely a claim to the equitable interference of the court to have that judgment held for his debt.” And he remarks: “ The attorney is not the dominus litis so as to marshal the proceedings on the judgment or the execution as he may think fit.” And this definition • of an attorney’s lien was again adopted by the court in Hough v. Edwards, (37 Eng. Law and Eq. Rep. 470.)
The attorney may take the money in transitu if he can lay hold of it. If he apply to the court they will prevent its being paid over till his demand is satisfied. (Lord Mansfield, in Welch v. Hale, 1 Doug. 287.) If the defendant pays the judgment to the plaintiff after notice of the lien, the court may require him to pay it again to the attorney. (Reed v. Duffee, supra.) When, however, the amount given on settlement of a suit was by way of gratuity to the plaintiff who was a widow, and the amount was small (£150) the court refused to give effect to the attorney’s lien. (Stretton v. The London and N. W. Railway Co., 16 Com. B. R. 40.) *448This lien is totally different from the lien upon tne papers. The lien on the judgment is confined to the costs of the particular suit, and the attorney can actively enforce it. The lien on the papers is merely a right to retain them, and applies to all his bills of costs. (Bozon v. Bolland, 4 Mylne & Cr. Ch. R. 354, 357.) All these cases, as well as others reported in the books, as far as my observation goes, were in the same court in which the judgment was obtained. Several of them were in the king’s bench and common law side of the exchequer, where the right of set-off is subject to the lien of the attorney, while in this state the lien is holden to be subject to the equitable claims that exist between the parties to the suit. (People v. N. Y. Common Pleas, 13 Wend. 649.) When the supreme court was without equity jurisdiction, it could not be tolerated that the court of chancery should take cognizance of a bill in equity to administer the funds which the plaintiff recovered in a court of law, merely for the sake of enforcing the attorney’s lien for costs. The judgment is under the control of the court in which it is obtained, and the attorney must apply to that court to protect his lien, instead of bringing an equity suit in another court; otherwise different and conflicting orders might be obtained in relation to marshaling the funds as between the several claimants.
In my opinion the theory of the complaint cannot be supported without engrafting a new principle into the administration of justice; but as far as it seeks to recover judgment against the defendant Lawrence M. Fox, the allegations are sufficient.
But in order to maintain an action against the defendant Peter Fox, it is at least necessary to allege that he claims an interest adverse to the plaintiff. (Code, § 118.) And it would seem that the nature of the claim should be stated. ( Van Santvoord’s Pl. 156.) There being no cause of action stated, as against him, the demurrer should be sustained. (Id. 671. 2 Kern. 580.) As a suit in equity it cannot be supported. The order overruling the demurrer should be *449reversed, and judgment given for the defendant Peter Fox, with leave to the plaintiff to amend on payment of costs,
[Onondaga General Term, December 22, 1863.Mullin, J. delivered on opinion coming to the same result.
Bacon, J. concurred.
Allen, J. dissented.
Order reversed.
Allen, Mullin, Morgan and Bacon, Justices.]
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