Opinion
November, 1904.
Daniel D. Sherman, for the appellant.
William L. Mathot [ J. Du Pratt White with him on the brief], for the respondent.
Interlocutory judgment affirmed, with costs, on opinion of Mr. Justice KELLY at Special Term.
All concurred.
The following is the opinion of Mr. Justice KELLY, handed down at Special Term:
The questions whether there is more than one cause of action stated in the complaint and whether, if more than one, they should be separately stated, are not before me on this demurrer and are not material to its decision. The objection that the State of Iowa is a necessary party defendant does not seem to me to be well taken. ( Adams v. Fox, 40 N.Y. 577.) The objections that the plaintiff's lien is a "retaining lien" and, therefore, "passive," that the plaintiff has no right to enforce it or have the amount thereof determined, and that the action is not justified, if sound (and I have grave doubt whether admitting the validity of the lien the attorney is barred from foreclosing it), are not grounds for demurrer. The fact that the plaintiff asked more in his complaint than he was entitled to would not make his complaint bad. No action or special proceeding had been commenced by the plaintiff as attorney for the defendant at the time of his discharge by defendant, and the defendant contends that until commencement of the action or special proceeding, no lien attaches (citing Code Civ. Proc. § 66). But the Court of Appeals in Matter of Knapp ( 85 N.Y. 284, 295), intimates that the lien exists under the Code before the actual commencement of the action. The plaintiff here is not confined to the statutory lien given by section 66 of the Code. "The remedy provided by the Code by means of a petition, is not exclusive, but cumulative, for a court of equity has always had power to ascertain and enforce liens." ( Fischer-Hansen v. B.H.R.R. Co., 173 N.Y. 492.) The lien of an attorney upon the papers of his client attaches not only for the costs and charges in the particular suit, but for any general balance in other professional business. ( Bowling Green Savings Bank v. Todd, 52 N.Y. 489; Maxwell v. Cottle, 72 Hun, 529.) This is not a rule peculiar to attorneys, but applies to an ordinary factor. He has a lien upon goods consigned to and received by him, for unpaid balances before accrued. ( Knapp v. Alvord, 10 Paige, 205; Bryce v. Brooks, 26 Wend. 367.) In Matter of Knapp ( supra) the court discusses the origin of the lien. "The general proposition that an attorney has a lien for his costs and charges upon deeds or papers, or upon moneys received by him on his client's behalf in the course of his employment, is not doubted, nor does it stand upon questionable foundations. It comes to us super antiquas vias. As early as the year 1734 it was held by Lord Chancellor TALBOT ( Ex parte Bush, 7 Vin. Abr. 74), to arise upon a contract implied by law and as effectual as if it resulted from an express agreement. * * * In our own State * * * Kent in his Commentaries (Vol. 2, p. 641), puts it down as an established principle that an attorney has two liens for his costs, one on the papers in his hands, and the other on the funds recovered." And Judge DANFORTH says (at p. 294): "It is plain then that the right of lien exists. Its origin should not be lost sight of. The declaration in Ex parte Bush was restated by Chancellor ELDON in Cowell v. Simpson (16 Ves. 279), where he describes it as ` prima facie a right accruing through an implied contract;' and as it exists in favor of those who have bestowed labor and service upon property in its repair, improvement or preservation, the agreement implied must be that the person rendering it shall retain the property until compensation is made. The lien of an attorney stands on no higher ground. In Ex parte Yalden (L.R. 4 Ch. Div. 129), JAMES, L.J., says: `The things upon which they claim a lien are things upon which they have expended their own labor or their own money,' and asks: `Why are they not to have that lien in the same way as any other workman who is entitled to retain the thing upon which he has worked until he is paid for it?'" I think, therefore, that under these decisions and the practice approved in the Fischer-Hansen Case ( supra), the plaintiff has a right to maintain this action and that the complaint is good. The demurrer should be overruled, with costs, with leave to defendant to answer on payment of costs.