In the Matter of the Petition of DAVID BENNETT KING and HENRY W. JESSUP to Enforce an Attorney's Lien. DAVID BENNETT KING and Another, Respondents; THEODORE C. ENGLISH, as Trustee, Substituted for ISAAC H. WILLIAMSON, as Trustee, etc., of BENJAMIN WILLIAMSON, Deceased, Appellant.
Appeal from special term, New York county.
Application of David Bennett King and another to enforce an attorney's fee lien for services rendered Theodore C. English as trustee. From an order appointing a referee to determine and report the compensation to be allowed such attorneys (69 N.Y.S. 399), the trustee appeals. Reversed.
Henry W. Arrowsmith, for appellant.
Henry W. Jessup, for respondents.
Argued before VAN BRUNT, P.J., and HATCH, McLAUGHLIN, PATTERSON, and INGRAHAM, JJ.
On the 1st of December, 1892, Benjamin Williamson, a resident of
the state of New Jersey, died, leaving a will, in which his son Isaac H.
Williamson was named as trustee of a trust estate therein created. The will was
admitted to probate in the state of New Jersey. The trustee qualified, and
acted until the 11th of March, 1896, when, by an order of the orphans' court of
Union county, in that state, he was removed, and Theodore C. English, the
appellant herein, appointed in his place. English qualified, and since has
been, and now is, acting as such trustee.
The trust estate consisted of certain stocks and bonds, which Isaac H.
Williamson, very soon after he qualified as trustee, lost in speculation,
having put them up as margins with certain brokers in the city of New York.
This fact having come to the knowledge of English, he, through his attorneys,
King and Jessup, the respondents herein, brought an action against the brokers
to recover such securities, upon the ground that when they dealt with
Williamson they knew, or had reason to believe, that such securities did not
belong to him, but were only held by him as trustee. English had a judgment,
which on appeal was affirmed by this court (29 A.D. 439, 51 N.Y.S. 697), and
pending an appeal to the court of appeals a settlement was made, the brokers
consenting that the securities, which had been deposited with the Central Trust
Company pending the determination of the action, might be delivered to English,
[70 N.Y.S. 357] as trustee; and thereafter an order of this court was obtained
by King and Jessup directing the trust company to deliver the securities
therein specified to English, as trustee. Before the trust company had complied
with this order, a dispute arose between English and King and Jessup as to the
amount of the latter's compensation for services as attorneys connected with
and growing out of the litigation referred to, and, being unable to agree, King
and Jessup, claiming to have a lien upon such securities for the amount of
their claim, forbade the trust company complying with the order by making the
delivery therein directed, and they thereafter made a motion for the
appointment of a referee to take proof, and make a report to the court of the
value of their services, with the view of enforcing their alleged claim on the
securities to the extent of the same. A referee was appointed, and from that
order the trustee has appealed.
For the purpose of the question now presented, it may be conceded that King and Jessup, as attorneys, originally had a lien on the securities recovered for the services rendered by them, which could have been, under section 66 of the Code of Civil Procedure, enforced in a proceeding instituted as this one was. We are, nevertheless, of the opinion that the application of the petitioners should have been denied, and for the reason that prior to the institution of it they had expressly waived whatever lien they had. There can be no doubt that a person who has a valid lien may waive it; and this, as it seems to us, is just what the attorneys did. At the conclusion of the litigation, when they, acting as attorneys for the trustee, procured an order of the supreme court directing the trust company to deliver these securities to the trustee, that act in and of itself was a distinct waiver of any right, claim in, or interest to the securities on their part for services rendered (Goodrich v. McDonald, 112 N.Y. 157, 19 N.E. 649); and this seems to have been the view entertained by the petitioners themselves when they wrote to the trustee under date of November 16, 1900, in which letter they said: " We have no desire to impress any such lien on the funds, and have assented to your taking the securities, and sending us a check for the balance at your convenience." After the order had been made, it was the duty of the trust company to comply with it, and for its refusal it could have been punished for a contempt of court; and it was equally a contempt of court on the part of others to prevent its complying, except in a proceeding instituted in court, looking to a modification or a reversal of the order. On all of the facts, therefore, we are of the opinion that the respondents waived their lien, and are not now in a position to enforce it.
It follows that the order appealed from must be reversed, with $10 costs and disbursements, and the motion denied, with $10 costs.
All concur, except PATTERSON, J., who dissents.
I concur with Mr. Justice McLAUGHLIN,
but I do not think that section 66 of the Code gives the court ...