Opinion
April 23, 1956
Appeal from an order denying appellants' application to determine the extent of their lien, for legal services, on the subject matter and property involved in an action to impress a trust on real property in Westchester County. Order affirmed, without costs. A charging lien cannot exist unless it is an element, express or implied, of the agreement that the lawyer is to be paid out of the fruits of the judgment. In this case, appellants effectively waived their lien (1) by the agreement of December 4, 1952, wherein they agreed to do their work in the Westchester action on the credit of Roy Newitt and not on the credit of the cause of action; (2) by the agreement of May 11, 1953, made more than two months after the entry of judgment, whereby they gave the client an extension of time for one year to make payment, and took an assignment of a mortgage as collateral security for the payment of their fee. ( Matter of Heinsheimer, 214 N.Y. 361.) Nolan, P.J., Beldock, Murphy, Ughetta and Hallinan, JJ., concur. [See post, p. 1026.]