Bertram L. Young, Plaintiff, v. Fred S. Howell, Appellant; H. and W. A. Hendrickson, Attorneys for Plaintiff, Respondents

Bertram L. Young, Plaintiff, v. Fred S. Howell, Appellant; H. and W. A. Hendrickson, Attorneys for Plaintiff, Respondents. Attorney’s Ken — when not enforced by allowing the attorney to prosecute the action, after a settlement by the client. The attorneys for the plaintiff in an action are not entitled, after the plaintiff has settled with the defendant for a sum less than his full demand, to prosecute . the action to judgment for the purpose of enforcing the lien given to them by section 66 of the Code of Civil Procedure, where it appears that the settlement was not made with the intention of prejudicing the attorneys, and that the plaintiff is solvent and.abundantly able to pay the attorneys’ claim. Appeal by the defendant, Fred S. Howell, from an order of the County Court of Albany county, entered in the office of the clerk of the county of Albany on the 21st day of March, 1901, permitting plaintiff’s attorneys to prosecute this action to judgment, after settlement, for the purpose of enforcing their lien for costs under- section 66 of the Code of Civil Procedure. John A. Stephens, for the appellant. H. & W. A. Hendrickson, respondents in person. [MAJORITY — Parker, P. J.:] Parker, P. J.: The plaintiff was primarily liable to his attorneys for their services in commencing and prosecuting this action, and the lien which is given them by section 66 of the Code is given as a security only for such demand. The court will enforce such lien whenever it is necessary to do so in order to protect the attorney’s legal claims, but the client still has the unrestricted control of the subject of the action and the terms upon which the settlement may be made, and such a settlement is not affected by such section unless it operate to the prejudice of the attorney’s claim. Such seems to be the rule as enunciated in the following cases: Lee v. V. O. Co. (126 N. Y. 579); Poole v. Belcha (131 id. 200); Peri v. N. Y. C. R. R. Co. (152 id. 521). In the case at bar it appears that the plaintiff is solvent and abundantly able to pay the costs to which his attorneys are entitled. Nothing appears in the case showing that security for their demand of sixteen dollars is needed. The plaintiff having settled with the defendant for a sum less than his full demand, must now settle with his attorneys for their services, and there is no intimation in the record that he cannot or will not do so. It is not claimed that there was any collusion in such settlement with a view to prejudice the attorneys, and inasmuch as plaintiff is not only liable but clearly able to pay them, the enforcement of their lien is not necessary. They are in no way prejudiced without it. It is urged upon ns that the defendant deceived and defrauded the plaintiff into making such settlement, but this application is not made on behalf of plaintiff to vacate such settlement on the ground of defendant’s fraud ; if it were, a different inquiry would be presented ; but, as it is clearly a motion to enforce the attorneys’ lien given by section 66 and nothing more, it must lie controlled by the rules above stated. The order is reversed, with ten dollars costs and disbursements. All concurred. Order reversed, with ten dollars costs and disbursements.