Stahl v. Wadsworth. of lien, which was sometime after. When defendants moved to give effect to said settlement, they offered to pay such costs as the law gave them notice that the attorney was entitled to. [1] No bad faith can be predicated on this. The statement that Wadsworth would fight before paying to Lyon fails of the same purpose; beside, it was mere hearsay and not entitled to be received. The same is true of the alleged statement made by plaintiff to Ensign. If the attorney desired to avail himself of it he should have embraced it in an affidavit made by plaintiff. In any event it was not shown that such statement, if made, was brought to the knowledge of defendants. The claim at the foot of the attorney's affidavit, that Wadsworth settled with full knowledge and in fraud of the attorney's lien, is no statement of a fact, nor are there appearing facts to sustain it. The authorities which should determine this appeal are numerous and conflicting beyond hope of reconciliation. It seems, however, to be established that parties have a perfect right to settle suits, even though the attorney does not give consent, and an executed settlement is binding upon the parties to it (Coughlin v. N. Y. C. & H. R. R. R. Co., 71 N. Y. 443; Root v. Van Duzen, 32 Hun, 63). [3] Previous to the amendment of section 66, Code of Civil Procedure, an attorney's lien only attached to the judgment obtained in the action, but it was broad enough to cover not only taxable costs but any agreed compensation between the attorney and client (Rooney v. Second Ave. Ry. Co., 18 N. Y. 368). [4] In the absence of notice of the attorney's lien, a defendant acting in good faith had the right to pay the judgment to plaintiff, and was protected in so doing (Wright v. Wright, 70 N. Y. 98). In the above case the court affirmed an order of the general term reversing an order of the special term Stahl. Wadsworth. which set aside satisfaction of a judgment to allow the attorney to enforce the judgment for his costs and counsel fees. [5] These cases arose before the amendment of 1879, but, unless the amendment has provided a new remedy for the enforcement of the lien, the doctrine decided possesses as much virtue as though no amendment had been adopted. The lien existed before amendment as well as after, but it did not extend to the cause of action (Wright v. Wright, 70 N. Y. 98). [6] The lien to the extent to which it had been carried was quite as effectual before as after the amendment. Section 66 does not in terms declare that such a lien shall exist, even though a bona fide settlement be made without notice; it simply says it shall exist as to the cause of action; by enlarging the subject to which it shall apply, it does not change any of the steps which were before necessary to make the lien effectual. [ In Jenkins v. Adams (22 Hun, 600), the general term, first department, upon a claim made that the amendment itself gave the notice, say, "Doubtless it was intended to confer upon the attorney the same rights, with regard to the cause of action, as he had previously possessed with regard to the judgment. Now, it was always the rule that a special interest in the claim and judgment. could only be protected by notice. This rule is equally applicable to the new lien upon the cause of action created by the section in question." [8] In McCabe v. Fogg (60 How. Pr. 488), the superior court of New York, FREEDMAN, J., held that this amendment did not change the remedy for enforcing the lien from what it had previously been, with the single exception that it was not now necessary to show fraud. In Tullis v. Bushnell (65 Iow. Pr. 465), the general term, New York common pleas, held that the practice was the same as before the amendment. [9] [10] In Goddard v. Trenbath (24 Iun, 182), the gen Stahl v. Wadsworth. eral term, second department, held that a settlement made in good faith would be upheld, the defendant having no notice of the attorney's lien at the time of effecting the settlement. In Wehle v. Conner (83 N. Y. 231), Judge FINCH, in speaking of attorney's liens, said: "Until such a lien is asserted by the party to it, the judgments are the property of the plaintiff; without notice of the claim the lien cannot be enforced." [12] In Williams v. Ingersoll (89 N. Y. 508), Judge EARLE writes that notice of the existence of the lien is only needful to defeat a subsequent bona fide payment made by the debtor (p. 522)—thus clearly implying that where the debtor had in good faith paid, a notice of the lien would be necessary, or he would be discharged from liability. [13] White v. Brady (4 N. Y. Monthly Law Bul. 39), holds that where the compensation agreed upon exceeds the taxable costs, notice to the opposite party is needful in order to protect the lien. [14] In re Bailey (4 N. Y. Civ. Pro. 140), the attorney was employed to defend an action, and succeeded. After entry of judgment the attorney gave notice of lien. The plaintiff, notwithstanding, paid to the receiver of the defendant, who had become insolvent. On petition by the receiver for leave to obtain the money so paid, the court, denied the petition, holding that the attorney's right to the costs became absolute after notice. The decision was affirmed on appeal. (5 N. Y. Civ. Pro. 253). [15] In several other cases cited and relied upon by appellant, a contrary rule has been established. Lewis v. Day (10 Weekly Dig. 49) and Coster v. Greenpoint Ferry Co. (5 N. Y. Civ. Pro. 146)* arose in the city court of Brooklyn; Justices McCUE and REY * The decision in this case was affirmed by the court of appeals without opinion. 98 N. Y. 660. Stahl v. Wadsworth. NOLDS, sitting at special term, decided that the amendment to the Code gave notice of the lien, and that a settlement in good faith, without notice, would not defeat it. [16] Moloughney v. Kavanagh (general term, first department [3 N. Y. Civ. Pro. 253]), was a case where an attempt was made to set off a judgment obtained in favor of the defendant against a judgment obtained in favor of the plaintiff, for costs. The attorney for plaintiff claimed a lien upon the costs, which was upheld, the court holding that the judgment awarding the costs only, no notice of lien was necessary to be given. To the same effect is Naylor v. Lane (5 N. Y. Civ. Pro. 149). [17] Smith v. Baum (67 How. Pr. 267), New York city court, special term, holds that the amendment gives notice of the lien which is presumptively the taxable costs, but not necessarily so; if more, it may be determined by the court, and judgment ordered that a settlement did not affect the lien. The court in this case states that questions arising in enforcing attorney's liens make it difficult to dispose of them by any fixed rule. [18] A careful examination of the cases leads me to the conclusion that the construction to be given the amendment to section 66, is not to change the rule which requires notice to be given of the attorney's lien, at least so far as his lien extends beyond the taxable costs. The weight of authority seems clearly to preponderate in favor of such construction. The right of the plaintiff to appeal (in the present state of this case) is sharply questioned by the respondents. The point stated is that the plaintiff, having settled, been paid his claim, and having released his cause of action, has now no standing in court; that if the appeal is for the attorney's benefit, he is not entitled to prosecute the action, not having obtained leave of the court for that purpose. That the plaintiff has settled and released his cause of action is not disputed. It is, therefore, difficult to see upon what principle the plaintiff has standing to be Stahl v. Wadsworth. heard. By his own act he acknowledges satisfaction, and when defendant seeks to avail himself of such act, as the law provides, he appeals from the order which gives legal effect to his action. If the law allows plaintiff to appeal in such a case, it is in a somewhat anomalous state. Previous to the amendment of 1879 the practice was quite well settled that the plaintiff was concluded by his [19] release, and if the attorney desired to proceed he should move to vacate the settlement, obtain leave to prosecute the action to enforce the lien, or prosecute a direct proceeding in his name for that purpose (Marshall v. Meech, 51 N. Y. 140; Rooney v. Second Av. R. R. Co., supra; Coughlin v. N. Y. C. & H. R. R. R. Co., 71 N. Y. 443; Pickard v. Yencer, 21 Hun, 403). [20] Since the amendment, authorities are not infre quent upon each side of this question. Mr. Justice BARKER, in Dimick v. Cooley (3 N. Y. Civ. Pro. 141, general term, fourth department) has said: "It (the order), was made in the name of the plaintiff, and she had no right to proceed after her consent to a discontinuance. After such settlement, the action could not proceed for any other purpose than to allow the plaintiff's attorney to secure and collect his costs. But without such permission from the court he was not at liberty to move in the action for any purpose. It would be an unwise and dangerous practice, extremely hazardous to the rights of both parties, to allow an attorney to continue the action, after the settlement of the parties, without first obtaining the consent of the court, that he may proceed for that purpose. When such permission is given, it is the duty of the court to direct as to the time and manner, and watch the proceedings and doings of the attorneys so as fully to protect the rights of both parties, and not unnecessarily annoy and embarrass either." In this case, after the settlement was had, the attorney attempted to obtain judgment in the actions, at special term, and the court not only denied his right to move |