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(182 N.Y.S.) that proceeding the respondent appeared for the appellant and defeated the claim of the intestate's next of kin; but that was a claim against the appellant, not one in her favor which was enforced in the proceeding in the Surrogate's Court and in which the appellant was represented by the respondent. Section 66 of the Code of Civil Procedure gives a lien upon his client's cause of action, claim or counterclaim;' but the appellant had no cause of action, claim or counterclaim involved in the proceeding in the Surrogate's Court. The next of kin of her intestate asserted the claim, which was defeated. After the final order the lien attaches to 'a verdict, report, decision, judgment or final order : in his client's favor, and the proceeds thereof in whosesoever hands they may come'; but here there was no cause of action, claim, or counterclaim which was sought to be enforced in the proceeding in which the respondent represented the appellant. All that could be subject to a lien of the respondent was the estate of the decedent, which was the subject of the controversy before the surrogate, and the property that belonged to the appellant and was in her possession was neither involved in a cause of action nor a claim of the appellant nor in the proceeds of the final order."
The foregoing, as well as other cases cited by the respondents, may appear to take a rather narrow view of the scope of section 475; but it seems to me that the principle is well settled by the decisions and that I am bound to apply it. It appears, therefore, that an attorney retained to contest a will is employed to defeat a cause of action, claim, or counterclaim asserted by the proponent against his client, and does not represent a person who asserts a cause of action, claim, or counterclaim. Under this view, the late Judge Beckett had no lien in the proceeding in which the later will was rejected, though his services were of great value and apparently worth more than he had been paid.
The decisions in Wood v. Cregan, 170 App. Div. 533, 156 N. Y. Supp. 810, and Matter of Pieris, 82 App. Div. 466, 81 N. Y. Supp. 927, affirmed 176 N. Y. 566, 68 N. E. 1123, are not to the contrary. In the first case the client was a sole legatee. The attorney procured probate of the will and the appointment of his client as administrator c. t. a. What was decided in that case was that the attorney, because of his services in establishing his client's sole right under a will to ownership of the estate as against another who claimed under the statute of distributions, was a "person interested" under section 2768, C. C. P., and entitled to compel an accounting. The opinion concurred in by a majority of the court stated that the attorney had a lien under section 475 of the Judiciary Law; but it is apparent that the case has little or no application to the facts herein, where the attorney represented contestants in a probate proceeding and where no fund or estate will come into the hands of the clients until they are successful as proponents in another proceeding. In the second case (Matter of Pieris, supra), the attorney had taken affirmative action for his client in establishing her sole ownership to a specific fund deposited 43 years previously in a savings bank, which had advertised for information as to the next of kin of the depositor. The attorney had performed services in having his client appointed administrator. The court said (82 App. Div. 469, 81 N. Y. Supp. 929) that "upon the entry of the decree her
title to that fund may be said for present purposes to have been practically adjudicated in her favor.”
Under the decree rejecting the 1915 will, Eno was not decreed testate or intestate. The rights of Judge Beckett's clients as legatees under a prior will or as next of kin are still undetermined. Furthermore, the Pieris Case was instituted in the Supreme Court, and the writer of the opinion stated that the decision was intended to be limited to the peculiar facts of that case. That the decision established no new principle governing attorneys' liens in administration proceedings in Surrogates' Courts is shown by a later case in the same court in which the Pieris decision was not taken as a precedent. Matter of Rabell, 175 App. Div. 345, 350, 162 N. Y. Supp. 218.
There is another aspect that merits consideration. The statutory lien "attaches to a verdict, report, decision, judgment or final order in his client's favor, and the proceeds thereof in whosesoever hands they may come.” But there were no proceeds to the decree, nor can there be any proceeds to such a decree. The decree declares that the paper propounded is not the last will and testament of the deceased and is not entitled to probate. The assets of the estate were not in the attorney's possession and there is nothing to which the lien could attach. Matter of Cutting (Sur.) 169 N. Y. Supp. 205; Matter of Rabell, 175 App. Div. 345, 162 N. Y. Supp. 218. There is no practicable way in which such a lien could be enforced. The decree refusing probate cannot be set aside, if the attorney is not paid. As in Matter of Nocton, 162 N. Y. Supp. 215, it would be futile to proceed with an inquiry as to the value of the services when there is no way to enforce any lien.
I am of the opinion, therefore, that Judge Beckett had no lien in the contested probate proceeding for probate of the will of 1915, and that for his services in connection with said later instrument he had no lien in the proceeding in which was filed a petition for probate of the 1914 will.
The first defense pleaded in the answer must be sustained and the petition dismissed. Settle order on notice.
PEOPLE ex rel. PRIOR ). PRIOR. (Supreme Court, Special Term for Motions, Kings County, June 22, 1920.) Habeas corpus em93—Court cannot direct father to make money provision
for child in custody of mother.
Domestic Relations Law, $ 70, permitting a parent to apply for a writ of habeas corpus and the court to award the custody of a child to either parent, does not authorize the court, nor has it inherent power, to direct the father, on custody being awarded the mother, to make a money provision for the support of the child, even with the consent of the father.
Proceeding by the People, on the relation of Albert S. Prior, against Edith P. Prior. Application to punish relator for contempt. Motion denied.
George E. Miner, of New York City, for relator.
LAZANSKY, J. Application to punish a husband for contempt in failing to obey that part of an order made under section 70 of the Domestic Relations Law (Consol. Laws, c. 14), which required the payment by the father to the mother of a certain sum of money for the support and maintenance of a child of the parties. At the time of the granting of the original order, which has been several times amended, the parties lived separate and apart. One of the answers of the husband to the motion is that the court had no jurisdiction in this proceeding to make an order providing for the payment by him of a sum of money for the maintenance and support of his child, even though the father consented to the order. Every justice, who has presided at ex parte, either knows or has made use of the practice of providing for the support of an infant, where in a proceeding brought under this section the award of the custody has been made to the mother. The practice seems to have given satisfaction. As far as I have been able to ascertain, no such order has ever been attacked for want of power.
In my opinion this enactment does not confer upon the court the power to make a money award, even if it be assumed the Legislature has the right to confer such a power upon the courts. It will be observed that the charge and custody of the child are awarded to a parent under such regulations and restrictions, and with such provisions and directions, as the case may require. In other words, the person into whose custody the child is given must take the child under such regulations and restrictions and with such provisions and directions as the case may require. The language does not, in my opinion, warrant the claim that it empowers the court to direct the father to make a money provision. Since the court has no power under the statute to make a money provision, the question arises as to whether or not there is an inherent power in the court to make such a provision. The original statute was enacted in 1830. It then provided for a petition by the wife alone, for then the father was deemed the For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes legal guardian. In 1896 the husband was also authorized to make the petition. Prior to its enactment the court, under a writ of habeas corpus, had no power to decide the question of custody of a child as between husband and wife. Under such a writ the only question involved was unlawful restraint. Of course, in cases of improper guardianship, the court would take the child away from the improper influence, and was therefore compelled to make some disposition of the child. This, in effect, decided the question of custody.
But the court never proceeded upon the basis of deciding that question. This statute, however, gave the court the power to decide the question of custody under a writ of habeas corpus on the application of the wife, and thereafter, by amendment, on the application of the husband. Of course, as parens patrize, a court of equity, either by petition or by action, always asserted its power to determine a question of custody or guardianship of an infant. The foregoing views are considered in Matter of Wollstonecraft, 4 John. Ch. 80; People v. Mercein, 8 Paige's Ch. 46; People ex rel. Sampson v. N. Y. C. Protectory, 93 App. Div. 196, 87 N. Y. Supp. 557; Matter of Knowack, 158 N. Y. 482, 53 N. E. 676, 44 L. R. A. 699; Wellsley v. Duke of Beaufort, 2 Bligh's New Reps, 124; People v. Brooks, 35 Barb. 85; People v. Chegaray, 18 Wend. 637; People v. Sternberger, 12 App. Div. 398, 42 N. Y. Supp. 423. Aside from statutory enactment, however, the court surely has no power under a writ of habeas corpus to make a money award. Attention has not been called to a case in this state where a court of law or equity has undertaken to make a money provision for the support of a child, except in matrimonial actions. There is authority to the contrary. Matter of Ryder, 11 Paige's Ch. 185, 42 Am. Dec. 109. It has also been held in a sister state that an action will not lie at the instance of a child to compel a father to support it. Huke v. Huke, 44 Mo. App. 308.
I conclude, therefore, that there is no inherent power in the court to make any such money provision. The only legal method to compel a father to support his child will be found in the Inferior Criminal Courts Act, and indirectly by action against the father for necessaries furnished to the child. Since, therefore, the statute does not confer the power, and the court has not the inherent power to make an award of money, my conclusion is that that part of the order was made without jurisdiction. Such jurisdiction could not be conferred by consent of the parties.
The motion must be denied. No costs.
(182 N.Y.S.) (191 App. Div, 854) GOUERT V. MECHANICS & METALS NAT. BANK OF CITY OF NEW
YORK et al. (Supreme Court, Appellate Division, First Department. May 14, 1920.) 1. Judgment Ow707-Conclusively determines question as between parties
A judgment conclusively determines all questions between plaintiff and defendant, but does not determine any question between plaintiff and one
not a party. 2. Judgment On 632—No right conferred on one not party to action.
Judgment in prior action, to which plaintiff was not a party, though not binding adjudication on her, and though it left her free to pursue any remedy she had against either plaintiff or defendant in such prior action, gave her no right against either of them which she did not previously
possess. 3. Corporations C-474—Pledgee in good faith may sell pledged bonds of third
person, despite fraud of pledgor.
Where plaintiff delivered bonds to a firm of stockbrokers, that they might include them in their schedule of assets on examination by a Stock Exchange, and the brokers instead pledged them with a bank as security for indebtedness, the bank, taking the bonds in good faith and without any knowledge of the fraud of the brokers, had a right to sell them and apply
the proceeds on the indebtedness of the brokers. 4. Corporations Cw474—Third persons, whose bonds were wrongfully pledged,
may insist that securities rightfully pledged be first applied.
Bonds were left with stockbrokers in order that they might report them among their assets on examination by a Stock Exchange. They wrongfully pledged the bonds, along with securities of other persons, to a bank as security for their indebtedness. The bank had no knowledge of the brokers' fraud. Held, that the sole right of the owners of the bonds was to require that the other securities, which had been rightfully pledged with the consent of the owners, should be first applied by the bank in satisfac
tion of the brokers' indebtedness. 5. Judgment Om662–Conclusiveness and effect of judgment as affected by
pendency of proceedings for relief against enforcement.
Stockbrokers wrongfully pledged plaintiff's bonds, and rightfully pledged securities of a customer carried on margin. The customer secured judgment against the pledgee bank for delivery to him of all the securities on tender of balance due on the brokers' indebtedness to the bank, but, before delivery of the securities to the customer, plaintiff, whose bonds had been wrongfully pledged, secured injunction restraining payment of any balance to the customer, or delivery of the securities to him on payment of the balance remaining due on the indebtedness, on condition she give bond to pay any damages to the customer, a privilege of which she failed to avail herself. The bank, on tender by the customer of the balance due, delivered the securities to him under the compulsion of his judgment against it. Held, that such delivery did not render the bank liable to plaintiff, but that the customer took the stock from the bank subject to plaintiff's claim.
Appeal from Special Term, New York County.
Action by Maybelle D. Gouert against the Mechanics & Metals National Bank of the City of New York and others. From a judgment for plaintiff, defendant Bank appeals. Judgment reversed, in so far as inconsistent with the opinion, and judgment entered, dismissing the complaint as against defendant Bank, etc.
For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes