Peri v. New York Cent. & H.R.R. Co.

• Decision Date: 20 April 1897
• Citation: 152 N.Y. 521,46 N.E. 849
• Parties: PERI v. NEW YORK CENT. & H. R. R. CO.
• Court: New York Court of Appeals Court of Appeals

152 N.Y. 521

46 N.E. 849

PERI

v.NEW YORK CENT. & H. R. R. CO.

Court of Appeals of New York.

April 20, 1897.

Appeal from supreme court, appellate division, Fourth department.

Action by Santi Peri against the New York Central & Hudson River Railroad Company. Judgment for plaintiff. From an order of the appellate division (43 N. Y. Supp. 1162) affirming an order of the supreme court vacating the satisfaction of a judgment, and directing the sheriff to enforce such judgment to the extent of the lien of plaintiff's attorney, defendant appeals. Affirmed.

James F. Gluck, for appellant.

George W. Cothran, for respondent.

BARTLETT, J.

This proceeding was instituted by the attorneys for the plaintiff to enforce their lien upon the judgment. The plaintiff recovered judgment against the defendant for damages sustained by personal injuries, for $5,000 and costs. The jury brought in a verdict for $10,000, and the trial judge reduced it one-half. After the sheriff had levied upon sufficient property to satisfy the claim, and the general term had affirmed, the plaintiff, without knowledge of his attorneys, assigned the judgment, and thereafter a settlement was effected for the sum of $4,200, which was paid to the assignee, who was an attorney at law. The plaintiff was an ignorant Italian laborer, and unable to speak the English language. The assignee paid to a creditor of the plaintiff the sum of $2,200, of which the plaintiff was to receive $1,200, and the balance, of $2,000, was retained by the assignee. The referee found that the plaintiff was wholly insolvent except as to the amount of money paid him out of the proceeds of the judgment, and that, within a few days after receiving the money, he left this country, and returned to Italy, where he still remains. About the time the action was commenced, plaintiff executed, acknowledged, and duly delivered an agreement in writing with one of the plaintiff's attorneys, to the effect that he would advance all money for expenses, and pay to the attorney one-half of all that he should recover in addition to the costs, disbursements, and interest. He further covenanted that he would not settle the action unless his attorney was present. The attorney of record for the defendant resided in the city of New York, and, as the venue was laid in Erie county, all the papers in the action, after issue joined, were sent to a firm of attorneys in Buffalo, who thereafter acted as the representatives of the New York attorney. More than a year before the settlement, the plaintiff's attorney served upon the Buffalo attorneys the following paper: ‘Please take notice that we have a lien for one-half of any judgment or settlement recovered in the above-entitled action, and for the costs and interest.’ This was in March, 1894, and before the general term had affirmed the judgment. In this proceeding, the special term appointed a referee to take proof of the facts and circumstances of the matters set forth in the papers read in support of and in opposition to the application, with direction to report the testimony, together with his findings of fact and conclusions of law, to the court. The referee found the facts in detail, and stated his conclusions of law, that the agreement was binding, and the plaintiff's attorneys were entitled to the amounts therein provided for, and, by virtue of section 66 of the Code of Civil Procedure, had a lien upon the judgment for the sum so found due, and were entitled to an order vacating the satisfaction of the judgment, and to enforce it by execution to the extent of their lien. The referee submitted with his report an opinion. The special term also wrote an opinion, and confirmed the report of the referee, and the appellate division affirmed the order of confirmation.

A preliminary question is presented by a motion to dismiss the appeal, made by plaintiff's attorneys, on the ground that the order appealed from does not finally determine a special proceeding under section 9, art. 6, of the constitution, and subdivision 1, § 190, of the Code of Civil Procedure. The plaintiff's attorneys insist that this is a motion in the action, and that the order entered herein is not appealable to this court. The defendant's counsel, on the contrary, urges that this is a special proceeding, which is finally determined by the order in question. We are of the opinion that this is a special proceeding, and cannot be regarded in any proper sense as a motion in the action. At the time this proceeding was instituted, the action had been tried, judgment entered against the defendant, and the same had been paid and satisfied. We have here a...