Coughlin v. N. Y. C. & H. R. R. R. Co.

v. Second Ave. Railroad Co., 18 N. Y. 368; McGregor v. Comstock, 28 id. 237; Ely v. Cooke, id. 365; Marshall v. Meech, 51 id. 140; 10 Am. Rep. 572; Wright v. Wright, 70 id. 98.

A person owning a judgment for the recovery of money may give his attorney, or any other person, by agreement, rights and equitable interests therein, which the defendant therein charged with notice must respect. So if the cause of action before judgment be in its nature assignable, the owner of it may assign and, by agreement, create legal and equitable interests therein, and such agreements may now be made with his attorneys as well as with other persons, and when such interests have been created and notice given of them they must be respected. But what I maintain is, that before judgment, in the absence of any agreement, the attorney has not now and never had any lien upon, or interest in, the cause of action; and when the cause of action is like this, such as by its nature is not assignable, the party owning it cannot by any agreement give his attorney or other person any interest therein. In People v. Tioga C. P., 19 Wend. 73, COWEN, J., said: "Assignments of personal injuries must still be regarded as mere covenants or promises which we cannot directly protect against the interference of the immediate party, though the defendant have full notice of the effort to assign. If the person professing to assign will do prejudice to the right by extinguishing or impairing it, the party with whom he deals must be left to his action for damages according to the nature of the undertaking." Mere personal torts of this kind cannot be separated from the person upon whom they are inflicted, and they die with him.

Here there was not even any agreement by plaintiff to assign any portion of the claim to his attorneys. The agreement executed did not purport to give them any present interest in the cause of the action. It was simply an executory agreement that the attor neys should share in the damages recovered, the cause of action. remaining intact in the plaintiff. Still an agreement to divide the recovery in such a case would attach itself to the judgment when recovered, and give the attorney an equitable interest therein.

It is, therefore, beyond dispute that the plaintiff's attorneys had neither a legal nor equitable interest by way of any assignment or lien on the cause of action. The defendant was not asking any favor of the court. It was in court simply insisting upon its settlement with the plaintiff as a defense to his cause of action. There

Coughlin v. N. Y. C. & II. R. R. R. Co.

fore, if the attorneys are entitled to the protection they now seek, it is only by the exercise of the extraordinary power of the court to which I have first above alluded, and I am prepared to say that such power should not be exercised in a case like this. It has not been conferred upon the courts by statute, usage or common law. Its exercise to secure to an attorney the statutory fees, small in amount and easily ascertainable, was just and proper, and could lead to no abuse. But to exercise it so as to enforce all contracts between clients and attorneys, however extraordinary, is quite another thing. Here the attorneys were contractors. They took the job to carry this suit through, and to furnish all the labor and money needed for that purpose, and they are no more entitled to the protection which they now seek than any other person not a lawyer would have been, if he had taken the same contract. When a party has the whole legal and equitable title to a cause of action, public policy and private right are best subserved by permitting him to settle and discharge that, if he desires to, without the intervention of his attorneys.

The conclusion I have thus reached is sanctioned by the case of Pulver v. Harris, 62 Barb. 500; s. c., 52 N. Y. 73. That was an action for assault and battery and plaintiff recovered a judgment, which he assigned to his attorney to secure his costs, and notice of the assignment was given to defendant. Defendant appealed, and the judgment was reversed. The action was then noticed for trial, but before the Circuit the parties settled, and plaintiff executed to defendant a release. Notwithstanding this, plaintiff's attorney moved the trial of the action when it was reached upon the calendar. Defendant's counsel produced the release, but that was disregarded by the court as in fraud of the attorney's rights, and the action was tried, and a report made for plaintiff by default for fifty dollars and costs. This report upon motion on behalf of defendant was set aside, the court holding that plaintiff's attorney as against the defendant had no lien, either legal or equitable, which could affect the settlement. This court held that the cause of action was not assignable, and that after the reversal of the judgment the assignment thereof became inoperative, so far as the defendant's rights were concerned; and that, as to him, the cause of action belonged to the plaintiff, which he could not transfer, and which remained subject to his control until merged in a judg ment, or at least in a verdict. It was properly said in that case,

Leonard v. City of Brooklyn.

that the assignment of a judgment would also include the cause of action upon which it was rendered, in case of a subsequent reversal if the latter was assignable, and the case was treated as if the attorney had had a formal assignment of the cause of action. Judge GROVER said: "It may be said that although the plaintiff was the owner of the cause of action, and as such had a right to control and settle the suit, yet, the defendant, knowing that the attorney relied upon the fruits of the action as security for the services, ought to have paid the money to him, instead of the plaintiff, upon the settlement. The answer to this is, that the attorney, having no legal or equitable lien upon the cause of action, the defendant had the right to pay the money to the plaintiff, to whom it belonged, and was not bound to take care of the interests of the attorney."

It cannot be claimed that plaintiff's attorneys here were in any better condition with the agreement which they took from plaintiff than they would have been if they had had a formal assignment of the whole cause of action to secure them for their services, and yet, as as is seen by the case cited, such an assignment would have given them no right to defeat the settlement which these parties made. [Omitting a statutory ground.]

Upon both grounds, therefore, the order of the General Term must be reversed, and the judgment on the report of the referee affirmed, with costs.

RAPALLO and ANDREWS, JJ., concur, FOLGER, J., concurs on first ground; CHURCH, C. J., concurs in result; ALLEN, J., did not sit; MILLER, J., not voting.

Order reversed and judgment affirmed.

Judgment affirmed.

LEONARD V. CITY OF BROOKLYN.

(71 N. Y. 498.)

Mechanics' lien — municipal property.

Unless expressly authorized by statute, a mechanics' lien cannot be enforced against real estate belonging to a municipal corporation, and in public use. (See note, p. 83.)

A

Leonard v. City of Brooklyn.

CTION to enforce a mechanics' lien. The opinion states the facts. The defendant had judgment on demurrer, and the plaintiff appealed.

James Troy, for appellant. The common-law rule applicable to the sovereign power of the State does not apply to a mere municipal corporation. 14 Alb. L. J. 69, 100, 113, 118, 177.

William C. De Witt, for respondent.

MILLER, J. This action was brought to enforce a mechanics' lien for labor and materials furnished by a sub-contractor in the erection of a "fire-bell tower" in the city of Brooklyn. The alleged lien arises under the provisions of chapter 478 of the Laws of 1862, which relates to mechanics' liens in the counties of Kings and Queens. This act, among other things, provides for instituting and prosecuting an action after filing service of notice of the lien, the same as other civil actions to enforce the lien, and declares "that such action shall be governed, and the judgment thereon enforced in the same manner as upon issues joined and judgments rendered in all other such civil actions aforesaid." It thus places the proceedings and the judgment upon the same basis as in actions to enforce any other lawful demand, and the plaintiff occupies no better or different position than any other creditor who holds a demand against a municipal corporation, and must be governed by the same rules. In Darlington v. The Mayor, 31 N. Y. 164, it is laid down by DENIO, J., that property held by a municipal corporation for public use, such as public edifices or their furniture, or ornaments, or the public parks, or grounds, or such as may be legally pledged for the payment of its debt, is not subject to seizure and sale on execution. The reason stated why this cannot be done is that these structures, etc., are public property, devoted to specific public uses, in the same sense as similar subjects in the use of the State government. It is claimed that the remarks of the learned judge must be regarded as obiter dicta, so far as the question presented in this case is concerned. We think that they relate to the subject then under consideration, the liability of a municipal corporation for its debts, and are based upon a sound principle. It is very evident that it would not be consistent with a safe and judicious administration of the affairs of a city, as well as an entire VOL. XXVII-11

Leonard v. City of Brooklyn.

disregard of the objects of a municipal government, to allow its property, held for public use, to be subject to levy and sale by execution for the debts of the corporation at the instance of a creditor. Such property is held by the corporate authorities, which constitute a part of the government, for the use, benefit and protection of its citizens. It is purchased with money realized by taxation on the property of the inhabitants, and is held in trust for the purpose of administering the government of the city, and if allowed to be seized and appropriated by a private creditor in satisfaction of a demand of such creditor, would fail to answer the purposes for which it was designed, and seriously interfere with and impair the practical workings of the municipal government in the discharge of its legitimate functions. It would sanction neg. lect of official duty in the officers of the corporation, and might lead to the most serious consequences.

It is easy to see that great inconvenience and even injury might result to the public from a forced sale of corporate property, as well as to the property of individuals within the limits of the corporation. No corresponding advantage would be gained by any such proceeding, and in the absence of any express authority to that effect, no reason exists why claims of the character of the one in controversy should stand upon any better or different footing than any other which exist against a municipal corporation, where judgment can be obtained and execution issued against such of the property of the corporation as is liable to levy and sale under the same. According to the express language of the act cited, the judgment is to be enforced the same as in other actions, and hence it would be inconsistent with this condition to allow such judgment to be collected by a sale of a "fire-bell tower" designed for public use, and which was erected upon land belonging to the corporation.

If judgments in other actions cannot be enforced by the sale of public property, for the reason that public exigencies require that such property should be exempt from seizure and sale, certainly a judgment obtained under the lien law, which is the mere foreclosure of the notice which had previously been served and filed for work done for the benefit of the city, should stand in no better position. The act in question confers no special advantage, nor does it give a preference to a lien in any such case, and nothing is to be intended in favor of an enactment which interferes with a