County Court, Nassau County, May, 1913.
ment or final order. The court upon the petition of the client or attorney may determine and enforce the lien."
The effect of this provision as to an attorney for a plaintiff is (1) that he has a lien from the commencement of an action or special proceeding upon his client's cause of action or claim, and (2) that such lien attaches to the verdict, report, decision, judgment, or final order in his client's favor. As to an attorney for a defendant, the effect of this provision is (1) that he has a lien from the time of the service of an answer containing a counterclaim, upon his client's counterclaim; and (2) that such lien attaches to the verdict, report, decision, judgment or final order in his client's favor.
Under the said provision of the Judiciary Law, the lien of a defendant's attorney comes into existence upon the service of an answer containing a counterclaim. The answer of Parliman did not contain a counterclaim, therefore the attorneys have no lien. Nat. Exhibition Co. v. Crane, 167 N. Y. 505; White v. Sumner, 16 App. Div. 70; Crossman v. Smith, 116 id. 791; Pierson v. Safford, 30 Hun, 521; Longyear v. Carter, 88 id. 513; Saranac & Lake Placid R. R. Co. v. Arnold, 37 Misc. Rep. 514; Fromme v. Union Surety & Guaranty Co., 39 id. 105.
Another objection made to the referee's report is that an attorney's lien cannot be established and enforced in such a proceeding as this. The last sentence of section 475 of the Judiciary Law says that "The court upon the petition of the client or attorney may determine or enforce the lien." In Fischer-Hansen v. Brooklyn Heights R. R. Co., 173 N. Y. 492, the court said (p. 502): "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 ascer
County Court, Nassau County, May, 1913.
tain and enforce liens." It may be that an attorney's lien could be established and enforced in a proceeding of this character. I am placing my decision solely upon the ground that in view of the limitations of the statute, confining the lien of a defendant's attorney to a case where the answer contains a counterclaim, I am constrained to hold that the claimants Wyckoff, Clarke & Frost have no lien.
The exceptions to said referee's report filed by the defendant Parliman should be sustained, and so much of said report as determines that the claimant Clifford Parliman is indebted to the claimants Wyckoff, Clarke & Frost for services and that they have a lien for the same set aside, and the said report in all other respects should be confirmed. A final order will be entered accordingly, which will be settled upon two days' notice, at which time the question of costs and referee's fees will be adjusted.
Use of street for municipal or individual purposes construction
of narrow gauge railroad action by. The use of a street for
municipal or individual purposes independent of its use for street
purposes is an additional burden on the fee not included in the
grant of lands for highway purposes. The construction of a narrow
gauge railroad about three feet in width with steel rails laid upon
ties sunk into the surface of a street, the fee to the bed of which is
owned by abutting property owners, and the operation thereon of
trains of dump cars in connection with excavation of municipal sub-
way construction, would create an additional burden on the highway
not for a street use which cannot be authorized by the legislature or
any municipal authority without making compensation there for to
abutting owners. Bradley v. Degnon Contracting Co., 90.
ACCOUNTING.
1. No cause of — attachment — evidence – pendency of action.—
The complaint herein alleged that defendant, claiming that one H,
plaintiff's assignor, was indebted to him in a certain sum for services
rendered to H, who was a nonresident, obtained an attachment
against his property; that service of the summons was made by sub-
stituted service, and plaintiff in that action took a judgment against
H by default for the amount of his claim; that after the attachment
was issued a debtor of H gave the marshal a certificate under sec-
tion 79 of the Municipal Court Act, and after the judgment against
H was obtained paid to the marshal the amount of the judgment,
who in turn paid it to plaintiff in that action, the defendant herein.
The complaint then alleged that the judgment obtained by defendant
herein against H was subsequently vacated and set aside, and, fur-
ther, that in the attachment suit defendant herein testified on the
inquest that he had rendered services to H in selling goods on a
commission which amounted to a certain sum and that he had spent
a certain amount of money for H; that such testimony was false
and untrue and that the statement made in the affidavit on which
the attachment was obtained as to the indebtedness of H to the plain-
tiff in the attachment suit were also false and untrue and judgment
is claimed for the amount paid to defendant herein. Held, that
the plaintiff has at present no cause of action, as proof of the facts
alleged will constitute a perfect defense to the attachment suit, it
appearing that said action is still pending and undetermined, await-
ing the return of a commission to take the testimony of H. Brom-
berger v. Anst, 502.
2. On contract for procuring subscription recovery in action.-
In an action to recover on a contract for procuring subscriptions to
certain periodicals produced by the efforts of plaintiff, he cannot
recover for subscriptions taken by another in the same business and
transferred to him. Wood v. Harper & Brothers, 513.
3. Allegation of no cause of discontinuance of for pro-
fessional services - partnership.-Where a firm was dissolved within
a month of the trial of an action brought by it, and a judgment
in its favor was reversed on the ground that no cause of action
was alleged in the complaint, and after the granting of a motion
for leave to serve an amended complaint on payment of $200 costs
the action was discontinued on the payment of said sum which was
advanced by plaintiff's attorney on the authority of one of the
plaintiffs, and where an action by the attorney against the other
member of the dissolved firm for professional services both of the
late partners testified that they gave plaintiff notice of the dissolu-
tion of the firm and that by the terms thereof the one who author-
ized the discontinuance of the action obtained exclusive ownership
of the claim against defendant in said action and was to bear all
charges in connection therewith, a judgment rendered in favor of
plaintiff after a trial without a jury was against the weight of evi-
dence and will be reversed. Senftner v. Kleinhans, 519.
4. For money had and received - burden of proof.-An action
for money had and received is to be determined on equitable prin-
ciples, and the plaintiff, in order to recover, must prove that in
equity and good conscience he is better entitled to the money than
defendant. Seaward v. Tasker, 570.
5. To recover commissions on sales made in foreign country-
pleading bill of particulars-depositions.-The interests of
commerce demand that our courts should give all proper aid to for-
eign creditors in the collection of just demands. Where, in an action
to recover commissions on sales made for defendants in England.
and also commissions on sale made by them in New York for a resi-
dent of England, the answer is a general denial, and a counterclaim
for a sum of money collected for defendants above all sums due
plaintiff is denied, and an order for the examination of defendants
before trial was vacated by the justice who granted it, on the ground
that the information required by plaintiff should be obtained by a
bill of particulars, and upon the further ground that some of the
facts asked for are within the knowledge of plaintiff, but his affidavit
states that not only are the facts constituting the counterclaim not
within his knowledge but are peculiarly within the knowledge of
defendants, the vacating order will be reversed. Lyon v. Gloeckner,
642.
In general right to lateral support and rights to make excava-
tions — action to recover for injury to retaining wall.-At common
law the owner of land is entitled to the lateral support of his
neighbor's land only for the soil in its natural state and not for
structures imposed thereon by him. If his neighbor excavates in
such a manner that without the superimposed structure the land
ADJOINING OWNERS-Continued.
would not have caved in, he is not, in the absence of negligence,
liable to injury to structure, upon the land due to his excavation,
and is under no duty to shore up and protect his neighbor's prop-
erty. Where, in an action to recover damages for injury to a re-
taining wall built at the intersection of plaintiff's property and de-
fendant's vacant lot, the evidence is insufficient to justify a finding
that defendant in excavating within two feet of plaintiff's line and
to a depth of two feet, after notice to plaintiff of its intention to
excavate for the purpose of building, was guilty of negligence, but
the testimony leads strongly to the conclusion that the falling of the
wall was due to the fact that it was a dry and improperly and
unskillfully constructed, a judgment rendered in plaintiff's favor,
after a trial by the court without a jury, must be reversed, and the
complaint dismissed. Steeneck v. O'Leary Realty & Const. Co., 507.
1. From judgment in Justice's Court Education Law, § 276.-
Where, on appeal from a judgment rendered in Justice's Court in
an action by the trustee of a school district on the bond of the
school collector of said district to recover forty-four dollars for
which, as claimed, he had failed to account, the report of plaintiff
prepared and filed pursuant to section 276 of the Education Law,
while showing a balance of seventy-two dollars and eight cents in
favor of the district, did not disclose whether said amount was in
the hands of the supervisor or collector, there being no treasurer
of the school district, and the public moneys apportioned to said
district are not shown to have been paid to the collector, he is not
accountable for money retained by the supervisor and disbursed by
him on the order of the referee, and the judgment in plaintiff's
favor will be reversed and a new trial ordered. Wise v. Bull, 205.
2. Action for personal injuries — reversal of orders setting aside
verdict evidence.- Where, on the second trial of an action for
personal injuries after a verdict for fifty dollars in plaintiff's favor
had been set aside, defendant's version of the accident was that
plaintiff in attempting to board a trolley car ahead of other passen-
gers at a regular stop was thrown by the motion of the car, though
it moved but a foot or two after her attempt to get aboard, and a
verdict for one hundred dollars was set aside on the ground that
the testimony of plaintiff, an unlettered working girl of eighteen
years of age, as to the manner in which her injuries were occasioned,
was conflicting and confusing, but the determinative factor was
whether or not the conductor pulled the bell, and one of the defend-
ant's chief disinterested witnesses, who insisted that he did not hear
any bell in connection with the accident, admitted that on the first
trial he had testified that he saw the conductor ring the bell, an
order setting aside the verdict will be reversed and the same rein-
stated. Panker v. Whitridge, 409.
1. Warrant of — granted by the court — recitation as to grant-
ing by the court.-A warrant of attachment granted at the time
of the issuance of a summons in a Municipal Court action is granted
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