Owen v. Forchelli

• Decision Date: 20 May 1964
• Citation: 249 N.Y.S.2d 913,42 Misc.2d 1064
• Parties: Ruby OWEN, Plaintiff, v. Sally M. FORCHELLI, etc., Defendant.
• Court: New York City Court

Page 913

249 N.Y.S.2d 913

42 Misc.2d 1064

Ruby OWEN, Plaintiff, v. Sally M. FORCHELLI, etc., Defendant.

Civil Court of the City of New York, New York County, Trial Term, Part 35.

May 20, 1964.

Philip Gelfand, New York City, for plaintiff.

Vincent Forchelli, Long Island City, for defendant.

EDWARD J. GREENFIELD, Judge.

After an award of alimony and counsel fees in a matrimonial proceeding, the attorney who represented the wife and had received the fees was discharged. He applied in that proceeding for the fixation of his fees on a quantum meruit basis and a reference was ordered. Before any hearings were held he died. His client had retained and paid other counsel to handle the trial of the matrimonial action, which resulted in a final decree of divorce in her favor. She now sues the estate of her original attorney to recover that portion of the counsel fees previously collected which were allegedly unearned. The estate, referring to the never completed reference to fix fees in the matrimonial proceeding, asserts as a defense the pendency of another action.

The matrimonial action has now been terminated by a final decree of divorce. The value of the attorney's services was never finally determined in that action. Does the application to fix attorney's fees nevertheless survive, having an independent viability as a special proceeding under Section 475 of the Judiciary Law?

Section 475 of the Judiciary Law confers upon an attorney who has appeared for a party a lien upon the client's cause of action and its proceeds. It is a charging lien against any recovery which may be obtained, so that the right to such lien is dependent upon a recovery or possible source of recovery by the client to which the lien might attach. The right to a charging lien survives the death of the attorney, so that his estate may enforce it against such recovery. Simon v. Burke, 190 Misc. 618, 74 N.Y.S.2d 140; Weldon v. DeMartini, 35 Misc.2d 710, 231 N.Y.S.2d 530.

When the cause of action does not eventuate in a recovery for the client, the lien has nothing to fasten to. Hence, when the cause of action is dismissed, the lien falls. Matter of Cooper [McCauley], 291 N.Y. 255, 52 N.E.2d 421. See also: Matter of Fox v . Gina Constr. Corp., 22 Misc.2d 177, 198 N.Y.S.2d 789; Matter of Stern's Estate, 9 Misc.2d 471, 167 N.Y.S.2d 316. The petition of the attorney to the court to have the amount of his fees fixed and determined under Section 475 when he has been discharged of further responsibility in an action is neither an action nor a special proceeding with independent viability, but a hybrid which ceases to exist when the main action dies without fruition. Ader v. Purcell, 194 Misc. 540, 87 N.Y.S.2d 164.

If the action results in a judgment or other recovery (as through settlement), the lien attaches to the proceeds, and the court in which the action was pending retains jurisdiction to enforce the lien. Gildersleeve v. Reitz, 80 Misc. 685, 142 N.Y.S. 674; Matter of Flower, Sup., 167 N.Y.S. 778.

In this case, the action on which the attorney labored finally terminated with a judgment of divorce in favor of his former client, and an award of alimony to her. However, his fee for the value of the services actually rendered prior to his discharge had not been finally determined before the action concluded, and the law is clear that as a matter of public policy the attorney's charging lien does not follow through to the alimony which constitutes in part the 'proceeds' of the matrimonial litigation. Turner v. Woolworth, 221 N.Y. 425, 117 N.E. 814; Schwartz v. Schwartz., 25 Misc.2d 225, 205 N.Y.S.2d 34; Kalish v. Kalish, 7 Misc.2d 612, 166 N.Y.S.2d 362.

Hence, the Supreme Court, which had cognizance over the matrimonial action, and which ordered a reference to...