Estate of Battle. [2] prison for contempt one who is shown to have disobeyed a decree of this court, he is not bound to grant the application as of course, but should grant or deny it in his sound discretion. This discretion should never be exercised in favor of a delinquent executor or administrator, who has been directed to make payments from moneys previously adjudged to be in his hands, and who has disobeyed such discretion, except under extraordinary circumstances. His mere inability to obey such direction at the time it is sought to enforce it should not suffice of itself to shield him for commitment-especially in cases where that inability has been occasioned by his dishonesty or his willful misappropriation of the funds committed to his hands (Matter of Snyder, 34 Iun, 302; affirmed, 103 N. Y. 178). [3] There is, indeed an intimation in the opinion of DANFORTH, J., in the case last cited, that when it has been shown to the surrogate, in a contempt proceeding, that an executor or administrator who has been adjudged to have in his hands funds of his decedent's estate, has knowingly neglected to obey a decree for a payment out of such funds, the surrogate may at that stage terminate the investigation and order the commitment of the delinquent. But Judge DANFORTH subsequently says, after commenting upon the special facts of the case before him, "The surrogate was not necessarily concluded by these bald and uncorroborated assertions of the defaulting executor, and, as the question is not only to be determined upon evidence at least conflicting, but also rests in discretion which has not been unfairly exercised, we find no ground on which we can review the surrogate's decision," citing Cochrane v. Ingersoll (supra). [4] This language seems to me to be quite inconsistent with the soundness of the claim of counsel for the moving party in the case at bar, that, even for shielding herself from imprisonment for contempt, the respondent Estate of Battle. cannot, in the face of the decree of July 15, 1886, and the provisions of section 2552 of the Code of Civil Procedure, be permitted to show that in truth and in fact she has at all times, since such decree was entered, been utterly unable to obey its directions. If such be the legitimate scope and effect of the language of section 2552 as to what shall constitute conclusive evidence" of sufficiency of assets, it must follow that when this court has once directed an executor or administrator to be imprisoned for disobeying a decree for the payment of money, this same "conclusive evidence" must render it forever afterwards powerless to grant the offender any relief under section 2286 based upon his actual liability to do what has been required of him. [5] It was held by the court of appeals, in Baucus v. Stover (89 N. Y. 1), that although an executor is de[*]clared, by section 13, title 3, chapter 6, part 2, Revised Statutes (3 Banks' 7th ed. 2296), * to be liable for his indebtedness to his testator "as for so much money in his hands at the time such debt becomes due," if nevertheless, he should be wholly unable to pay the money, in pursuance of the order or decree of the surrogate, on account of his insolvency, he could not be attached and punished for contempt." An interpretation of section 2552, which would save this respondent from imprisonment (assuming that the statements in exoneration of her conduct are true) is in line with the interpretation of section 13, which has the sanction of our highest court in Baucus v. Stover. I feel warranted by the authorities above cited in applying to the case at bar the test which Judge DYKMAN applied to Cochrane v. Ingersoll, viz.: If this respondent was actually in confinement to-day for disobedience to the decree here sought to be enforced, and was now asking to be discharged because of her inability *2 R. S. 84, § 13. Stahl v. Wadsworth. to obey its directions, would her application commend itself to the approval of the court? [8] I think it would and should, upon the papers before me, and must, therefore, dismiss the present proceeding, unless the moving party wishes to submit affidavits in opposition to those presented by the respondent, or to pursue before the surrogate an inquiry into the truth of the allegations in her behalf. STAHL, APPELLANT, v. WADSWORTH AND ANOTHER, RESPONDENTS. SUPERIOR COURT OF BUFFALO, GENERAL TERM, JULY, 1887. $ 66. Attorney's lien-When notice of necessary-Effect of settlement by client. The parties to an action have a perfect right to settle it, even though the attorney does not consent, and an executed settlement is binding upon them. [2] The amendment of section 66 of the Code of Civil Procedure,―relating to attorney's liens,-made in 1879, did not provide a new remedy for the enforcement of such liens, but merely extended the lien so that it should cover, in addition to taxable costs, any agreed compensation between the attorney and the client; and now, as well before such amendment, a notice of the lien, so far as it extends beyond taxable costs, is necessary in order to uphold it against a bona fide settlement between the parties. [3, 18] Rooney v. Second Ave R. R. Co. (18 N. Y. 368); [3] Wright v. Wright (70 Id. 98); [4, 5] Jenkins v. Adams (22 Hun, 600); [7] McCabe v. Fogg (60 How. Pr. 488); [8] Tullis v. Bushnell (65 Id. 465); [9] Goddard . Trenbath (24 Hun, 182); [10] Wehle v. Conner (83 N. Y. 231); [11] Williams v. Ingersoll (89 Id. 508); [12] White v. Brady (4 Monthly Law Bul. 39); [13] In re Bailey (4 N. Y. Civ. Pro. 140; aff'd, 5 Id. 253); [14] followed. Lewis o. Day (10 Weekly Dig. 49); [15] Coster v. Greenpoint Ferry Co. (5 N. Y. Civ. Pro. 146); [16] Moloughney v. Kavanagh (3 Id. 353); Stahl v. Wadsworth. [17] Naylor v. Lane (5 Id. 149); [16] Smith v. Baum (67 How. Pr. 267); [17] not followed. Where the plaintiff in an action has settled with the defendant, and thereafter the defendant moves to discontinue, and the motion is opposed by the plaintiff's attorneys, on the ground that they have a lien for compensation upon the cause of action, an appeal from an order granting such motion should not be taken in the name of the plaintiff; the proper practice in such a case is for the attorney to move to vacate the settlement and for leave to prosecute the action for the lien, or to prosecute a direct proceeding in his own name for that purpose. [19, 29] Dimick v. Cooley (3 N. Y. Civ. Pro. 141); [20] Goddard v. Trenbath (24 Hun, 182); [21] Murray v. Jibson (22 Id. 386); [22] Tullis v. Bushnell (65 How. Pr. 465); [23] Smith v. Baum (67 Id. 267); [24] Coster v. Greenpoint Ferry Co. (5 N. Y. Civ. Pro. Blanche v. Kirkpatrick (8 Id. 256); [26] followed. Schulting (35 Hun, 504); [27] not followed. Wilber v. Baker (24 Id. 24), [28] distinguished. 147); [25] La Forstman v. Instance of a case in which a settlement of an action by a client without his attorney's knowledge was held not in fraud of the attorney. [1] (Decided July 19, 1887.) Appeal by plaintiff from order granting motion to discontinue action upon payment of costs. The facts are stated in the opinion. Spencer Clinton (Henry L. Lyon, attorney), for plaintiff-appellant. George Wadsworth, defendant-respondent, in person. HATCH, J.-This action was commenced by the service of a summons and complaint in September, 1885. The defendants answered separately. Issue was joined by the service of a reply in January, 1886. Before issue was joined, the parties settled, defendants paying to plaintiff the sum of $1,001, and by instrument under seal bearing date December 22, 1885, acknowledged that day, the plaintiff released, acquitted and discharged the defendants, VOL. XIII.-3. Stahl . Wadsworth. and each of them, from all liability on account of the demands, and cause of action mentioned and set forth in the complaint. No notice of such settlement was given to the attorney for the plaintiff, by the defendants, nor was he advised from any source of such settlement until the spring of 1886. Since said settlement, the defendant Wadsworth has served an amended answer, in the fourth count of which he alleges he has paid and satisfied the claim of the plaintiff. The cause has been referred for trial and determination. On October 7, 1886, the defendants served upon the plaintiff's attorney a notice stating that the action had been settled; that plaintiff had released the cause of action herein, and offered to pay said attorney his taxable costs and disbursements, and, also, offered to allow judgment to be entered against them for the amount of such costs and disbursements as adjusted. Said attorney refused to accept the same, and on January 9, 1887, he served upon defendants a written notice that he had a lien upon the cause of action to the extent of sixty per cent. thereof as compensation for his services in the action, and that he should not recognize payment of that sum to any other person. No other notice than this was ever given. Thereafter, defendants made a motion in this court, upon affidavits, and the papers and proceedings, for an order discontinuing said action, upon the payment of the taxable costs and disbursements to plaintiff's attorney. On the hearing of said motion the court ordered said action discontinued upon payment of costs and disbursements. Plaintiff appeals from said order to this court. There are no facts stated in the opposing affidavits which tend in any manner to impeach the bona fides of the settlement. The statement that Wadsworth did not inform the attorney for the plaintiff until some time after the settlement does not tend to show fraud upon his part, or a design to cheat the attorney out of his costs. appears that he knew nothing about the attorney's lien during any of this time, or until the attorney served his notice It |