Heinsheimermeyer v. Schulte
| Citation | 214 N.Y. 361,108 N.E. 636 |
| Parties | In re HEINSHEIMER. MEYER v. SCHULTE et al. |
| Decision Date | 23 March 1915 |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from Supreme Court, Appellate Division, First Department.
Action by Anton H. Meyer, as assignee of the United States Restaurant & Realty Company, against David A. Schulte and another. There was a judgment for plaintiff, and Norbert Heinsheimer, an attorney and counselor at law, fild a petition to enforce an attorney's lien on and against the judgment. From an order of the Appellate Division, modifying and affirming an order of the Special Term, confirming a report of a referee to ascertain and define the amount of the lien, the party aggrieved appeals. Motion to dismiss appeal (164 App. Div. 265,149 N. Y. Supp. 631) denied, and order modified and affirmed.Alexander Gordon, of New York City, for appellant.
Henry K. Heyman, of New York City, for respondent.
The petitioner is a member of the bar. He was retained by the United States Restaurant & Realty Company as its general counsel at a salary of $5,000 a year, payable semiyearly. In February 1910, there was due to him under this retainer a balance of $3,096.92. The client then terminated the general employment and selected other counsel. The petitioner declined to surrender his papers unless the arrears of salary were paid. In this he acted within his rights. At the client's request, however, he tried an action then upon the calendar, and recovered a judgment against one Schulte for $4,176.64. For this he was to be paid whatever the service was worth. The client then made an assignment for the benefit of creditors. The assignee was substituted as plaintiff, and another lawyer was substituted as attorney, without prejudice, however, to the petitioner's right to enforce his lien, if any there was found to be. After appeals, first to the Appellate Division and then to this court, the judgment was affirmed.
This proceeding was thereupon begun by the petitioner to determine the extent of his lien on the proceeds of the judgment . The value of the services rendered in the trial of the action against Schulte, after the general employment was ended, has been fixed by the Appellate Division at $500. That the petitioner has a lien to this extent is conceded. The question is whether he has a lien for the unpaid balance of his salary. The services under the general retainer included many matter other than the Schulte case. They included many matters having no relation to any lawsuit. All services alike were to be paid for by this salary, and the order under review makes the entire balance of salary a lien upon the judgment.
[1] We think that this is an unwarranted extension of the scope of an attorney's lien. At common law, the liens available to an attorney were of two kinds. There was a retaining lien on all papers, securities, or moneys belonging to his client which came into his possession in the course of his professional employment. Bowling Green Savings Bank v. Todd, 52 N. Y. 489;Ward v. Craig, 87 N. Y. 550, 560;Goodrich v. McDonald, 112 N. Y . 157, 163,19 N. E. 649, 651. This was a general lien for the entire balance of account. It was dependent, however, upon possession. There was also a charging lien, which bound a judgment recovered through the attorney's efforts. This lien was not dependent on possession. The very reason for its existence was to save the attorney's rights where he had been unable to get possession. ‘It was a device invented by the courts for the protection of attorneys against the knavery of their clients, by disabling clients from receiving the fruits of recoveries without paying for the valuable services by which the recoveries were obtained.’ Goodrich v. McDonald, supra. A clandestine or collusive payment, after notice, actual or constructive, of the lien, did not discharge the debtor. Coughlin v. N. Y. C. & H. R. R. Co., 71 N. Y. 443, 448,27 Am. Rep. 75.
But the reason for the existence of this lien suggests the limitation of its scope. It was not a lien for a general balance of account. It was a lien for the value of the services rendered in that very action. Williams v. Ingersoll, 89 N. Y. 508, 518;Adams v. Fox, 40 Barb. 442, 445;West v. Bacon, 13 App. Div. 371,43 N. Y. Supp. 206;Phillips v. Stagg, 2 Edw. Ch. 108;Hazeltine v. Keenan, 54 W. Va. 600, 46 S. E. 609,102 Am. St. Rep. 953;Weed Sewing Machine Co. v. Boutelle, 56 Vt. 570, 48 Am . Rep. 821. If the attorney got possession of the fund, he had a general lien. If he did not get possession, his lien was for the services that brought the fund into existence, This charging lien still exists under our statutes. It has been enlarged to the extent that it now attaches to a cause of action even before judgment. ‘From the commencement of an action or special proceeding’ the attorney now 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 whosesoever hands they may come.’ Judiciary Law (Consol. Laws, c. 30) § 475. Except as thus changed, the charging lien is to-day what it was at common law.
Neither at common law nor to-day does such a lien embrace a claim for unpaid salary. Meritorious the petitioner's services doubtless were. They cannot, however, be made a charge upon the judgment. In serving under his general retainer, he was in the same position as any other salaried employé. He was to receive $5,000 a year, payable semiannually. In return, he was to do anything and everything in the line of a lawyer's work that his client might require. It was a mere accident that part of his work included a lawsuit in which the client was a plaintiff. He would have earned his pay just the same if he had done office work exclusively. He might, indeed, have earned it, though he had done nothing at all. In point of fact, the work that he did in the Schulte case, while the general retainer was in force, must have been insignificant in amount. We think it cannot be made use of as an excuse for charging the entire salary on the proceeds of the judgment.
The charging lien of an attorney has been likened to the lien of an artisan or mechanic. But even the lien of an artisan or mechanic will be lost if the terms of payment are inconsistent with its existence. Chase v. Westmore, 5 M. & S. 186. If the work is done, not on the credit of the thing itself, but solely on the credit of the owner, there is a waiver of the lien. Such a waiver will result, for illustration, where the agreement is that the thing shall be first returned and payment made thereafter. It was pointed out by Lord Ellenborough in Chase v. Westmore, supra, that this has long been the law. We are referred by him to the Year Book, Easter Term, 5 Edw. IV, fol. 2 b:
The same rule has been followed in this court. In Wiles Laundering Co. v. Hahlo, 105 N. Y. 234, 241,11 N. E. 500, 503,59 Am. Rep. 496, the plaintiff was in the laundry business. Its agreement was that the goods laundered for the manufacturer should be returned as fast as the work was done, and payment made at the beginning of the...
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