In re Regan

• Decision Date: 04 June 1901
• Citation: 60 N.E. 658,167 N.Y. 338
• Parties: In re REGAN et al.
• Court: New York Court of Appeals Court of Appeals

167 N.Y. 338

60 N.E. 658

In re REGAN et al.

Court of Appeals of New York.

June 4, 1901.

Appeal from supreme court, appellate division, First department.

In the matter of the judicial settlement of the accounts of James Regan, executor under the will of John Feehan. From an order of the appellate division (68 N. Y. Supp. 527) vacating in part a decree on the final accounting of such executor, Percy D. Adams and others, heirs at law and next of kin, appeal. Reversed.

Louis Marshall and James W. Hyde, for appellants.

Bernard J. Tinney, for respondent.

O'BRIEN, J.

The original proceeding in this matter was brought in the surrogate's court by the heirs at law and next of kin for an accounting and distribution by the executor and trustee of the will of one John Feehan, deceased. The application resulted in a decree of the surrogate entered on the 12th of December, 1898, whereby it was adjudged that there was in the hands of the executor $8,001.67 for distribution. The esecutor was directed by the decree to distribute this sum, after deducting all payments for commissions and charges pro rata to five persons, who claimed as distributees under the will, the sum to be distributed to each heir being the sum of $1,522.07. The decree also directed the executor to pay the costs and disbursements of the application, which were adjusted at $590.60. This proceeding for an accounting was conducted by the attorneys in whose behalf the present application is made upon the retainer of the petitioners and distributees under the will. Subsequently, and on the 14th of December, 1898, transcripts of this decree were filed in the office of the county clerk, one for costs, and the other five representing the amounts awarded to each of the heirs at law and next of kin instituting the proceeding; and subsequently releases and satisfactions of the decree, and of the amounts payable thereunder, respectively, were filed in the surrogate's court, and the decrees marked ‘Satisfied.’ Subsequently, and in June, 1899, the attorneys who had conducted the proceedings for the accounting applied to the surrogate by petition and upon notice to vacate the satisfaction of the decree in his office, as having been made in disregard of their rights and their lien upon the judgment or decree for compensation. Prior to this time the attorneys had brought an action against their clients, the heirs and next of kin, to recover compensation for the services rendered in the proceeding. They recovered judgment, and an execution thereon was returned unsatisfied. The surrogate, after a hearing, granted the application of the attorneys, and directed the decree of settlement and distribution to be amended in certain respects, and vacated the satisfaction to the extent of the lien of the attorneys upon the same. The order also vacated the satisfaction entered upon the transcripts of the decree filed in the county clerk's office. The appellate division reversed the order of the surrogate vacating the satisfaction, on the ground that he was without jurisdiction in the matter, and from this order of reversal the attorneys have appealed to this court.

We think that the application made by the attorneys to vacate the satisfaction of the decree, on the ground that it was made in disregard of their lien and by collusion, after notice of the lien to the executor and to the distributees, was a special proceeding, and that the order of the surrogate vacating the satisfaction pieces was a final order in that proceeding, and so is reviewable in this court. Peri v. Railroad Co., 152 N. Y. 521, 46 N. E. 849;Van Arsdale v. King, 155 N. Y. 325, 49 N. E. 866.

The principal question involved in the appeal is whether the attorneys had a lien upon the judgment or decree of the surrogate directing distribution for their reasonable compensation for professional services in that court resulting in a favorable judgment to the petitioners. Section 66 of the Code, as it now stands, secures to the attorney a lien for services, not only in an action, but in a special proceeding as well, and this was a special proceeding. At the time that the decree was entered, however, the Code had not been amended so as to embrace within the scope of the section a lien in favor of an attorney in a special proceeding, and the right of the attorneys in this case must be determined independently of the provisions of the Code as they now stand. It has been held that an attorney had no lien upon a decree procured in a surrogate's court (Flint v. Van Dusen, 26 Hun, 606), but the decision in that case was placed upon the ground that the surrogate's court was not then a court of record; that in such courts there are no ‘attorneys,’ in the sense in which that term is used in courts of record; and that it is only in respect to the parties' character as attorney and client that the claim to a lien exists. It was also said that courts not of record, possessing only a limited jurisdiction, had no such equitable control over their judgments as would enable them to adjudicate upon and enforce liens thereon. But this situation has been entirely changed by subsequent legislation, embraced within the provisions of the Code. Not only are surrogates' courts expressly declared to be courts of record, and classified with the other courts of record in the state, but the right of parties to appear by...