Opinion
May 8, 1918.
Leary Fullerton [ Walter A. Fullerton of counsel], for the appellants.
Visscher, Whalen Austin, for the respondent.
Plaintiffs, as attorneys for the administratrix of one Mongone, brought an action against the defendant to recover damages for the death of the intestate, which was alleged to have been caused by defendant's negligence. Under an agreement with the estate plaintiffs were to receive for their services fifty per cent of the amount recovered or realized in the settlement, in addition to costs. The complaint and answer in said action had been served, and the defendant, as plaintiffs allege, knowing the plaintiffs' lien, settled with the estate, paying it $1,000 damages and taking a release of said cause of action, and that said settlement was wrongfully made to deprive them of their just lien on said cause of action, and that the plaintiff in said action was irresponsible and the plaintiffs could not recover their compensation from her, and they ask to have their lien determined and paid.
The answer contains several denials and alleges, as a defense, that the administratrix who brought the action to recover for the death had duly resigned and Mary F. Mondello had been duly appointed administratrix in her place, and that the defendant had paid to Mary F. Mondello $1,000 in settlement and compromise of any cause of action on account of the death of said Mongone, and had received her discharge therefor, and that said payment was made in good faith and said Mondello had not been substituted as a party plaintiff in said action.
Reading this alleged defense with the complaint, it appears that the estate had brought an action to recover for the death, and that the attorneys bringing the action, to the knowledge of the defendant, had a lien on the said cause of action, and any settlement made, for their services, and that the defendant had settled said cause of action and paid the estate $1,000 in disregard of the plaintiffs' lien, and that unless the lien is enforced in this action the plaintiffs cannot be compensated.
There was but one cause of action against the defendant for the death of Mongone, and that cause of action could be enforced only by his personal representative. It is quite immaterial who was the personal representative from time to time. The fact is that the defendant, with knowledge of the cause of action and of the action to enforce it, and of the plaintiffs' lien, has settled the claim with the estate, and that the plaintiffs cannot collect pay for their services otherwise then by enforcing their lien against the defendant. The demurrer was well taken, as the facts alleged in said answer constitute no defense.
The order is, therefore, reversed, with ten dollars costs and printing disbursements, and the demurrer sustained, with ten dollars costs.
All concurred.
Order reversed, with ten dollars costs and disbursements, and demurrer sustained, with ten dollars costs, with the usual leave to defendant, upon the payment of such costs, to plead over within twenty days.