Goodrich v. McDonald

• Decision Date: 15 January 1889
• Citation: 19 N.E. 649,112 N.Y. 157
• Parties: GOODRICH v. McDONALD et al.
• Court: New York Court of Appeals Court of Appeals

112 N.Y. 157

19 N.E. 649

GOODRICH

v.McDONALD et al.¹

Court of Appeals of New York.

January 15, 1889.

Appeal from supreme court, general term, Fourth department.

About the year 1870, Mrs. Jennie L. Graves, a daughter of the defendant Mrs. Martha McDonald, employed Milo Goodrich, the plaintiff's father, as her attorney to prosecute an action in her favor as administratrix of her deceased husband's estate, against William T. Porter and others, who resided in the state of Delaware. The action was commenced in the supreme court of this state, but was removed by the defendants into the United States circuit court, where it was twice tried before a jury, resulting each time in a verdict in favor of the plaintiff for the full amount claimed. After the last trial an appeal was taken by the defendants to the United States supreme court, and while the case was pending there, in 1881, Mr. Goodrich died. Soon after his death Mrs. Graves employed Mr. Kernan to argue the appeal, and the judgment was affirmed. When the judgment was about to be paid to Mr. Kernan, in January, 1882, he wrote to Mrs. Graves, and also to the plaintiff, George E. Goodrich, who was then administrator of his father's estate, suggesting that they both come to Utica, the place of his residence, and receive the money. Thereupon the plaintiff wrote a letter to Mr. Kernan, in which he stated: ‘While my father's estate is interested in the judgment, I am willing to look to Mrs. Graves alone for the share of the judgment coming to us, and she may therefore discharge the judgment, and receive all proceeds, after settling with you, so far as the claims of the estate are concerned.’ He also on the same day wrote to Mrs. Graves, saying to her that he had written to Mr. Kernan, informing him that he was willing to allow her to receive the money and discharge the judgment, and that his father's estate would look to her alone for the amount coming to him as administrator. Thereafter, in January, 1882, Mrs. Graves went to Utica at the time appointed by Mr. Kernan, where she received from him, after deducting the amount of his compensation for services rendered in the case, $11,502.41, and she discharged and satisfied the judgment. On or about the 1st day of March thereafter she purchased a bond and mortgage for $6,000, and took an assignment thereof to herself, and on the 1st day of May following she assigned and transferred the same to the defendant Mrs. McDonald. The consideration of the assignment to Mrs. McDonald has the following history, as found by the trial judge: ‘Prior to the commencement of the action by Mrs. Graves against Porter and others, she being destitute of means or credit with which to pay the costs. expenses, and disbursements necessary to be advanced and incurred in said litigation, or to support herself and family and educate her children during said litigation, made an agreement with her mother, the defendant Martha McDonald, to the effect that, in case the latter would advance and furnish the moneys necessary for that purpose, if the suit was finally successful, and a recovery was had therein, then she would pay over to her mother, the said McDonald, one-half of said recovery; that the said McDonald agreed so to do, and performed her agreement to that effect by supporting the said Jennie L. Graves and her two daughters, and furnishing them board and clothing, and educating said daughters, or defraying the expenses thereof, and also by advancing to the said Jennie L. Graves the necessary moneys to defray the expenses and disbursements incident to the prosecution of said action against said Porter and others mentioned in said complaint during the pendency of the same;’ and the bond and mortgage were assigned to discharge Mrs. Graves' obligations under that agreement. Soon thereafter the plaintiff demanded payment of Mrs. Graves for the services of his father in the suit against Porter and others, and, payment being refused, he commenced an action against her to recover the amount, and to establish a lien upon the funds in her hands; and in that action it was adjudged that she was indebted to him as administrator for the professional services of his father in the sum of $1,600; that he and his father had a lien upon the judgment rendered in the action against Porter and others for the services so performed; that payment of the judgment to her did not constitute a waiver or release of the lien; that the plaintiff had an equitable lien upon the proceeds of the judgment so paid to her, and then in her hands, or under her control; and she was directed to pay to the plaintiff out of such proceeds the sum of $1,600, and interest thereon. That action was against Mrs. Graves alone. In October, 1884, the plaintiff, not being able to realize anything in that action, for the reason that Mrs. Graves had disposed of all the money received by her upon the judgment against Porter and others before the trial and judgment in that action, commenced this action against Mrs. Graves and Mrs. McDonald for the purpose of establishing a lien upon the bond and mortgage assigned to the latter as above stated. The trial judge found that he had a lien upon the bond and mortgage, and was entitled to enforce it, and ordered judgment in favor of the plaintiff. That judgment having been affirmed at the general term, the defendant Mrs. McDonald appeals.

Matthew Hale, for appellant.

H. V. Howland, for respondent.

EARL ( after stating the facts as above.)

The judgment in the action brought by Mrs. Graves against Porter and others was perfected on the 26th day of June, 1877, about two years before the amendment of section 66 of the Code of Civil Procedure enlarging the scope of that section, so that now an attorney who appears for a party has a lien upon his client's cause of action which attaches ‘to a verdict, report, decision, or judgment in his client's favor, and the proceeds thereof, in whosesoever hands they may come.’ The section as amended was prospective only in its operation, and can have no effect upon a judgment previously recovered; and so it was held by the trial judge. Therefore in the examination of the case it is not necessary to take further notice of the section. Nor is it necessary to give any attention to the adjudication in the former action by the plaintiff against Mrs. Graves, as that action was commenced after the assignment of the bond and mortgage to Mrs. McDonald, and she was not a party thereto, and therefore not bound by the adjudication therein.

Attorneys have two kinds of liens peculiar to them in their relations with their clients. One is a lien which an attorney has upon all the papers of his client in his possession, by virtue of which he may retain all such papers until his claim for services has been discharged. That in the books is called a ‘retaining lien.’ An attorney also has a lien upon the fund or judgment which he has recovered for his compensation as attorney in recovering the fund or judgment, and that is denominated a ‘charging lien.’ Stokes, Liens, Attys. 5, 85; In re Wilson, 2 Civ. Proc. R. 351. It is the latter kind of lien with which we are concerned in this case.

The practice of enforcing such liens is not very ancient. Baron PARKE, in Barker v. St. Quintin, 12 Mees. & W. 451, stated that the doctrine of an attorney's lien on a judgment was first established in the case of Welsh v. Hole, 1 Doug. 238, where Lord MANSFIELD said: ‘An attorney has a lien on the money recovered by his client for his bill of costs. If the money come to his hands, he may retain to the amount of his bill. He may stop...