Opinion
March Term, 1900.
Order modified, without costs, in accordance with opinion of Goodrich, P.J.
The plaintiff retained an attorney to prosecute an action against the defendant on a claim for damages for injuries to himself, and agreed to pay him "forty per cent of any verdict or settlement secured in said action or claim." An action thereon was commenced on July 25, 1899, and the defendant answered on August fourteenth. During the month of August, apparently after the joinder of issue, the plaintiff and defendant settled the cause of action for the sum of $350 and bill of the physician, such settlement being made "upon the express promise by said representative of the defendant that the defendant would pay the plaintiff's attorney his costs and fee." After the settlement the defendant served an amended answer, setting up a general release by the plaintiff to the defendant. A motion followed for permission to the plaintiff's attorney "to continue the prosecution of the above-entitled action for his own costs and lien under the contract between him and the plaintiff herein." The court ordered "that the defendant pay to the plaintiff's attorney herein, within five days after service of a copy of this order, with notice of entry hereof, the sum of one hundred and seventy-five dollars, his costs and lien herein on the amount of the settlement of this action between the parties." A motion for a reargument was made by the defendant's attorney which was denied, and the defendant appeals from both orders. For the reasons stated in the opinion of Mr. Justice Hirschberg, in the case of Pilkington v. Brooklyn Heights R.R. Co., decided at the present term ( ante, p. 22), we think the court is without authority to enforce in a summary manner the agreement of the defendant's representative to pay the costs and fee of the plaintiff's attorney. Unless the defendant voluntarily makes such payment the proper course is to permit the action to be continued by the plaintiff's attorney, as was held in the case cited. The order should be modified, without costs, so as to provide that unless within twenty days the defendant pay $175 to the plaintiff's attorney, said attorney is granted leave to continue the prosecution of the action for the collection of his compensation. All concurred.