The opinion of the court was delivered by: POLLACK
This is an application to determine the priority of payment to be accorded to various liens against a $10,000 fund created herein by settlement of this action.
The plaintiff is an incompetent presently in a State mental institution. The application is made by his guardian ad litem appointed herein by order of this Court for the sole purpose of effecting and distributing the proceeds of the settlement. The claims against the fund are in excess of the amount of the settlement.
The suit was brought to recover for personal injuries suffered by plaintiff on March 29, 1960 and was settled on January 8, 1969.
1. The Plaintiff's Attorney
The claim of plaintiff's attorney for his fee in connection with this suit has first priority. New York Judiciary Law, McKinney's Consol.Laws, c. 30, §§ 474, 475. On April 20, 1960, when plaintiff was still competent, he entered into a sliding scale retainer in the form approved by the Appellate Division, First Department, with his attorney. The fee thereunder of $3,708.63 plus $118.20 of expenses for a total amount of $3,826.83 is proper and, accordingly, is approved for payment in that amount.
2. U.S. Department of Labor
The U.S. Department of Labor, Bureau of Employees' Compensation, filed a claim herein in the sum of $137.13 for compensation allegedly paid to the plaintiff in 1960 in connection with the injury sustained from the accident. This sum was actually paid by the insurance carrier of plaintiff's employer. The Department of Labor was not involved in this payment at all. The United States Attorney has withdrawn the Government's claim since the motion was made. Accordingly, this claim is disallowed.
The foregoing dispositions leave $6,173.17 available for the remaining claimants to the fund. Their claims are for services supplied and all but one of them relies on an assignment of the prospective proceeds of this lawsuit obtained prior to the time the fund came into existence, as follows:
Claimant Period of Service
S. A. Siegel, M.D. (medical services) May 11, 1960 to March 31, 1964
Dept. of Hospitals City of New York May 16, 1960 to April 23, 1963
Dept. of Social Services, City of New York Feb. 1, 1958 to Jan. 1, 1967
Dept. of Mental Hygiene, State of New York Oct. 19, 1965 to Nov. 10, 1968
Period Date of
Claimant of Service Assignment Amount
S.A. Siegel, M.D. May 11, 1960
(medical services) to May 11, 1960 $ 185.00
March 31, 1964
Dept. of Hospitals May 16, 1960
City of New York to July 1, 1960 $ 1,396.00
April 23, 1963
Dept. of Social Feb. 1, 1958
Services, City to Oct. 2, 1962 $10,524.62
of New York Jan. 1, 1967
Dept. of Mental Oct. 19, 1965
Hygiene, State to None $11,599.00
of New York Nov. 10, 1968
3. General Legal Considerations
A claim for the recovery of damages for personal injury cannot be transferred. New York General Obligations Law, McKinney's Consol.Laws, c. 24-A, § 13-101. However, the proceeds of the personal injury claim may be transferred by assignment in advance of judgment or settlement. Williams v. Ingersoll, 89 N.Y. 508 (1882); Silinsky v. State-Wide Insurance Co., 30 A.D.2d 1, 289 N.Y.S.2d 541 (2d Dept. 1968); Grossman v. Schlosser, 19 A.D.2d 893, 244 N.Y.S.2d 749 (2d Dept.1963). In the leading case of Williams v. Ingersoll, the New York Court of Appeals said that such an assignment will be treated as an executory contract for the transfer of a future fund upon which specific performance will be granted when the fund comes into existence.
The rights of the assignee first attach to the fund when it comes into being, i.e., when there is a judgment or an appropriation of the proceeds in favor of the assignor (the plaintiff-incompetent herein). "The assignment here could not even in equity operate upon the unliquidated claim for damages on account of the personal tort, but attached to the award the moment it was made." Williams v. Ingersoll, supra, 89 N.Y. at 519. The assignee's claim against the fund does not relate back to the date of the execution of the assignment. In re Modell, 71 F.2d 148 (2d Cir. 1934); City of Utica v. Gold Medal Packing Corp., 54 Misc.2d 708, 710, 283 N.Y.S.2d 611 (Sp.Tm., Oneida Co. 1967); In re Woods' Estate, 144 N.Y.S.2d 880, 884 (Surr.Ct.West.Co.1955).
Consequently, the rights of those claiming the fund herein under written assignments from the plaintiff must be measured as of January 8, ...