Aiello v. Levine
| Decision Date | 02 February 1965 |
| Citation | 255 N.Y.S.2d 921,44 Misc.2d 1067 |
| Parties | Salvatore AIELLO, M.D., Plaintiff, v. Leslie I. LEVINE, Defendant. |
| Court | New York District Court |
Flaum & Imbarrato, Levittown, for plaintiff.
Leslie I. Levine, Mount Vernon, pro se.
In this action, a physician seeks to recover for services rendered as an expert witness at the trial of a negligence action. The defendant, the attorney in that action, interposes an affirmative defense that he, 'an attorney-at-law, acted as an agent for a disclosed principal.'
Prior to the plaintiff's appearance as an expert, the parties affixed their signatures to a document drawn by the attorney, reading as follows:
'To Whom It May Concern:
September 5, 1964
I, Dr. Salvatore Aiello, agree to accept a subpoena and subpoena deces tecum to testify in behalf of the plaintiff Louis Barreiro in the Nassau County Supreme Court Trial of Barreiro v. Gary Auto Lease and Lebowitz. My fee for reimbursed time to me is $150.00 for a 1/2 day (4 hr. period) session if I appear before Oct. 1, 1964 and $100 if I appear on or after October 1, 1964 for the same period. The undersigned attorney agrees that said fee shall be a lien upon the proceeds of any award though it shall in no way be contingent upon any recovery.
Salvatore Aiello, M.D.
Leslie I. Levine
Atty for Plaintiffs'
In the absence of agreement, a physician, unlike a hospital, does not have a lien on the proceeds of a settlement or recovery in a tort action (Woodley v. National Transportation Co., App. First Dept., May, 1955, 208 Misc. 732, 142 N.Y.S.2d 879). (See also Glazer v. Department of Hospitals of City of New York, 2 Misc.2d 207, 155 N.Y.S.2d 414 and cf. Lien Law, § 189, subd. 1.)
The principle applicable here seems to be somewhat too broadly stated in N.Y.Juris. (vol. 3, Attorney and Client, § 82):
'An attorney, like other agents, nay be held liable to a third person for money collected by him for his client, if the attorney had notice of the third party's claim, but paid it over to his client, and the claim is thereafter substantiated, even though the attorney could not have interpleaded his client.' (Citing Sims v. Brown, 6 T. & C. 5, aff'd 64 N.Y. 660).
The principle is perhaps more accurately found in 3 C.J.S. agency § 173b:
'In the case of an adverse claim the agent is not bound to pay the amount claimed to his principal unless he is protected against claim; he must interplead the principal and the claimant if he can, and demand indemnity and deliver the property to the party who indemnifies him; and, if after proper notice of the claim by a third person he turns over the property or funds to his principal, he becomes liable to claimant if the latter has a right thereto, although he will not be liable if he turns over the property to his principal with knowledge of a third person's claim but before it has been legally asserted.' (Emphasis supplied.)
This rule has been applied where an attorney had notice of an assignment of a portion of the proceeds prior to the distribution of the funds. Brinkman v. Moskowitz et al. (App. Term 2nd Dept.), 38 Misc.2d 950, 951, 238...
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