First Department, May, 1906. [Vol. 113. Louis Frankel [Job E. Hedges with him on the brief, Edward W. Fox, attorney], for the appellant. John F. McCann, Jr. [Henry C. Eldert with him on the brief], for the respondents. CLARKE, J.: W. Fox * * * * This action was brought by two grandsons of John Sullivan, deceased, to construe the last will and testament of said decedent which had been admitted to probate in New York county on or about March 9, 1886. The complaint asked that certain provisions of said will directing that the surplus income be applied for the payment of mortgages on the property left by said decedent, and to invest and reinvest such surplus income after paying off such mortgages until the determination of the trust estate, be declared invalid. The complaint also asked for an accounting by the trustees. The plaintiffs had entered into a contract, under seal, with the attorney, which provided: "We do hereby retain Mr. Edward ** as our attorney, to represent us in all matters relating to the estate of our deceased grandfather, John Sullivan, and we hereby authorize the said Edward W. Fox to institute such proceedings as may be necessary in any court to enforce our rights or to protect our interests in said estate, and said Edward W. Fox is hereby authorized to commence any action at law or in equity for an accounting; for the construction of the last will and testament of said John Sullivan, deceased, or otherwise, as said Edward W. Fox may deem necessary for such purposes, and to engage and employ such counsel as the said Edward W. Fox may deem necessary therefor. We hereby agree to pay the said Edward W. Fox the sum of twelve and one-half (12%) per cent each, on any amount which we may recover, or to which we may be entitled by a decree or judgment in any such actions or proceedings instituted by the said Edward W. Fox; or in case of settlement or adjustment of our rights or interests in said estate, the said Edward W. Fox shall be entitled to the equal sum of twelve and one-half (121%) per cent each on the amount to which we would be entitled, or would recover by decree or judgment were it not for such settlement or adjustment. It is hereby expressly understood that said Edward W. Fox is to be entitled to twelve and one-half (121%) per cent each on any amount of App. Div.] First Department, May, 1906. the accrued income to which we may be entitled or which we may recover as above from the estate of said John Sullivan, deceased, exclusive of any costs and allowances and which may be granted by the court, and which said costs and allowances are to belong to said Edward W. Fox, in addition to said sum of twelve and one-half (12%) per cent each." After the preparation and service of the summons and complaint all of the parties agreed to a discontinuance, it being set forth in the papers by the trustees that no consideration of any sort had been paid to the plaintiffs, or agreed to be paid or intended to be paid, voluntarily or otherwise, for their agreement that the action be discontinued. The only reason given by the plaintiffs for their desire to discontinue is as follows: "That since the bringing of said action he has regretted bringing any such case, and after due deliberation and consultation with his family he has come to the conclusion to absolutely withdraw from the case. It is his intention, therefore, to enter into any agreement with the trustees which will dispose of the case in the quickest possible manner. Deponent is willing to abide by any disposition of the case which the trustees may see fit to make," each plaintiff making a similar affidavit. Upon the return of the order to show cause why the motion for a discontinuance should not be granted, the attorney for the plaintiffs filed an affidavit in which he set forth at length his connection with the case, the services rendered by him, and his contract with the plaintiffs, and, averring that he had no desire to stand in the way of discontinuing the action if his rights were properly protected, prayed that the court might summarily determine his rights according to the provisions of section 66 of the Code of Civil Procedure, "and that an order may be entered discontinuing this action upon the payment to this deponent of the sum of Six thousand and two hundred and fifty ($6,250) dollars, besides costs and disbursements to be taxed by the clerk of this court, and that such sum should remain a lien upon the shares of the accumulated income to which plaintiffs are or may hereafter be entitled to, and that the court may make such other and further orders herein as may be proper or necessary to enforce the rmedies provided in section 66 of the Code of Civil Procedure." The learned court made an order simply discontinuing the action First Department, May, 1906. [Vol. 113. "without further costs to any party as against the others," and from said order the attorney for the plaintiffs appeals. The attorney makes no objection to the discontinuance of the action. He admits the right of the parties as between themselves to put an end to the litigation. His grievance is that his claim was not established summarily and a lien for the amount thereof declared. Section 66 of the Code of Civil Procedure provides that; "The compensation of an attorney or counsellor for his services is governed by agreement, express or implied, which is not restrained by law. From the commencement of an action or special proceeding, or the service of an answer containing a counterclaim, the attorney who appears for a party has a lien upon his client's cause of action, claim or counterclaim, which attaches to a verdict, report, decision, judgment or final order in his client's favor, and the proceeds thereof in whosoever hands they may come, and the lien can not be affected by any settlement between the parties before or after judgment or final order. The court, upon the petition of the client or attorney, may determine and enforce the lien." A valid contract under seal retained the attorney in all matters connected with the estate of plaintiffs' grandfather, and his compensation by express agreement was fixed upon a percentage basis of the amount recovered or, in case of settlement or adjustment, on the amount plaintiffs would be entitled to " or would recover by decree or judgment were it not for such settlement or adjustment." Relying upon such contract the attorney has made investigations, performed services, drawn and served papers and employed counsel. Without his consent, without payment or security for the payment of his services, his clients adjust their differences with the defendants and discontinue the action. What rights has the attorney and how is he to enforce them? He has by the section (Code Civ. Proc. § 66) referred to, a lien upon his client's cause of action or claim. There is no doubt but that this lien attaches not only to a verdict, decision or judgment and the proceeds thereof, but also in case of settlement before the judgment or trial, "it attaches to the amount agreed upon in settlement the instant that the agreement is made, and if the defendant pays over to the client without providing for the lien of the attorney he violates the rights of the latter and must stand consequences. The lien was not affected by the the * * * adjustment, but leaped from the extinguished cause of action to the amount agreed upon in settlement." (Fischer-Hansen v. Brooklyn Heights R. R. Co., 173 N. Y. 502.) But in the Fischer-IIansen case there were two things which differentiated it from the case at bar. There was a settlement for a money consideration between the parties, and there was an extinguishment of the cause of action by the delivery of a release under seal. Upon these papers no pecuniary settlement has been made; no amount has been fixed as paid or to be paid upon which the agreed percentage could be calculated or to which the lien could attach. Nor has the cause of action or claim of the plaintiffs been extinguished. The suit has been discontinued, but there is no proof that the claim under their grandfather's will has been affected or that when the trustees come to account, as sometime they must, the questions raised in the complaint herein may not be raised by the plaintiffs. So that we have here a different question from those heretofore adjudicated. In Matter of King (168 N. Y. 53) stocks and bonds, assets of a trust estate, were removed into this State from the jurisdiction of the New Jersey court, and the New Jersey trustee employed attorneys in this State to recover the securities. After a long litigation. they were successful, and, the securities being in the possession of the Central Trust Company subject to the order of the court, and the trustee having disputed the attorneys' bill, they instituted a proceeding under section 66 of the Code of Civil Procedure to have the amount of their lien determined and enforced. It was upon those facts that the court said: "In this case the petitioners had a lien created by statute. The proceedings provided for by the Code are instituted by a petition and are in the nature of the foreclosure of a lien. * * * The Special Term undoubtedly could have retained the proceedings, tried out the question as to the value of the petitioners' services and determined the rights of the parties without a referee, but the petitioners were entitled to have their rights determined by the court either with or without the aid of a referee. The court could not properly, in the exercise of its discretion, deprive the petitioners of this remedy. The remedy given is equitable in character, and we think the equity side of the court has jurisdiction." In Matter of Regan (167 N. Y. 342) a decree had been obtained APP. DIV.-VOL. CXIII. 5 First Department, May, 1906. [Vol. 113. and entered in the Surrogate's Court which had been satisfied in derogation of the rights of the attorney, and it was held that the surrogate had power to protect the lien of an attorney upon the judgment or decree, and had power to vacate the satisfaction of the decree. In Matter of Fitzsimons (174 N. Y. 15), in a proceeding to compel an accounting by an administratrix in the Surrogate's Court, a collusive settlement was had behind the attorney's back. Upon the consent and release so obtained a motion was made to approve the account. Upon that motion the attorney presented a petition setting forth facts entitling him to a part of any recovery to which his clients would be entitled upon such accounting and to compensation as attorney for the contestants. He also asked that his rights as such attorney under the agreement between himself and the contestants be determined in that proceeding and the proceeding continued for that purpose. The court said: "That he had a right to present such a petition to the Surrogate's Court, and that it was the duty of the court to continue, the proceeding for the purpose of enabling him to establish his right to the compensation claimed, especially as his client was insolvent and the alleged settlement was secret and collusive, is abundantly established by the plain provisions of the statute and the decisions of this court. * But the Appellate Division dismissed the appellant's petition and denied his right to establish such lien before any evidence as to the facts had been given, and with no proof before it except that set forth in the affidavits used upon the motion. Appellate Division erred in dismissing the * * * * * * * The learned petition and * denying him the relief sought when there had been no investigation or trial as to the facts." In Smith v. Acker Process Co. (102 App. Div. 170) Mr. Justice WILLIAMS, after reviewing the cases, said: "It seems to us from a consideration of these late expressions of the Court of Appeals, that we should not favor the continuance of an action for the benefit of the attorney's lien. Its only object would be to arrive at the attorney's compensation in a case where there has been an agreement with the client for a percentage of the recovery, and even in such a case the result of a trial after a settlement would hardly be a fair indication of what the recovery would have been in the absence of the settlement which was contemplated by the agreement originally |