App. Div.] Second Department, May, 1910. same parties to recover upon the same cause of action. (Ingrosso v. Baltimore & Ohio R. R. Co., 105 App. Div. 494; 94 N. Y. Supp. 177.) This seems to be the general rule (Cuyler v. Vanderwerk, 1 Johns. Cas. 247; Perkins v. Hinman, 19 Johns. 237; Edwards v. Ninth Ave. R. R. Co., 22 How. Pr. 444; Richardson v. White, 27 id. 155; Spaulding v. American Wood Board Co., 58 App. Div. 314; Barton v. Speis, 73 N. Y. 133), and it will be enforced unless special facts are presented which indicate that an exception ought to be made. The reason for this rule is a wholesome one. It has for its basis the fact that, where a party has successfully defended a prior action, he ought not to be put to the trouble and expense of defending another action predicated upon the same cause of action until he has been paid the costs awarded to him by the court in the action first commenced." * * * The order denying the defendants' motion was made upon the authority of Maass v. Rosenthal (62 Misc. Rep. 350) and Skeels v. Bodine (68 App. Div. 217). In these cases stays of proceedings in second actions were refused on the ground that the prior actions were in equity and the subsequent ones at law. Maass v. Rosenthal was an action at law to recover damages for deceit claimed to have been practiced by the defendant upon the plaintiff in a transaction involving the exchange of real estate for lumber. The plaintiff had brought a prior action to set aside certain conveyances of land to the defendant upon the ground of alleged false representations made by him in regard to the lumber. At the trial of the first action it appeared that the defendant had conveyed the land to other parties who were not made parties defendant, and that the plaintiff was not, therefore, entitled to equitable relief. The Special Term, however, awarded the plaintiff a money judgment for the amount of the damages proven. It was held on appeal from this judgment to the Appellate Division, First Department (125 App. Div. 452), that the complaint should have been dismissed with or without costs, leaving "the plaintiff to her remedy at law in an action brought on a proper theory supported by appropriate allegations for such relief." Subsequently the Special Term made an order dismissing the complaint, with costs. The costs were not paid prior to the commencing of the action at law. A motion to stay proceedings in the second action was denied. That case does Second Department, May, 1910. [Vol. 138. not aid the plaintiff. The judgment was reversed for an error of the Special Term; the plaintiff was remitted, by direction of the court, to her action at law; the second action could not, therefore, be termed vexatious; the bringing of the first action without bringing in all necessary parties defendant was not the fault of the plaintiff, but that of the defendant who had conveyed the land. In this case the complaint was dismissed on the merits. The parties in the two actions are the same, and the facts alleged and the relief demanded are in effect substantially identical. In Skeels v. Bodine an order staying the plaintiff's proceedings until payment of costs in a prior action had been paid was reversed upon the ground that the complaint in that action had been dismissed "without prejudice to an action at law on the written contract." "If the words 'without prejudice," said Mr. Justice BARTLETT, writing the opinion in that case, "are to be given any effective meaning beneficial to the plaintiff, they must be held to import that he is at liberty to institute and proceed with the action. now before us just as freely as though there never had been any lawsuit between the parties in New York county at all." The complaint in this case was not dismissed "without prejudice," nor with any suggestion by the court that the plaintiff have recourse to an action at law. The bringing of the second action was her own voluntary act. In her second complaint she alleges no new matter of consequence. Before proceeding further she should comply with the terms of the former judgment. The distinction between actions at law and suits in equity has been abolished. There is no reason why any distinction should be made between the two forms of action in applying the rule involved in this appeal. The order should be reversed, with ten dollars costs and disbursements, and the motion for stay granted. JENKS, BURR, THOMAS and CARR, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and motion for stay granted, with costs, App. Div.] Second Department, May, 1910. CLARENCE C. FERRIS, Respondent, v. AUGUSTUS E. LAWRENE, Appellant, Impleaded with THE CITY OF NEW YORK, Defendant. Second Department, May 26, 1910. Attorney and client - pleading action on contract of retainer giving contingent fee - lien of attorney representing client in condemnation proceedings. A complaint of an attorney at law which in substance alleges that he entered into an agreement with the defendant, the owner of lands which were to be taken by condemnation, whereby he was authorized to take all legal proceedings to obtain compensation, and was entitled to a certain percentage on any amount awarded above a certain sum; that he proposed a sale to the condemnor on behalf of the owner which was carried into effect, and that, when the premises were conveyed, the consideration, which was in excess of the minimum sum, was paid to the owner, although the plaintiff notified the condemnor of his rights, in which notice the owner acknowledged that he appeared in the proceeding by plaintiff as attorney, states a cause of action against the owner. Under such contract the attorney, by virtue of section 475 of the Judiciary Law, has a lien on the award made to his client. APPEAL by the defendant, Augustus E. Lawrene, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 9th day of December, 1909, upon the decision of the court, rendered after a trial at the Kings County Special Term, overruling the said defendant's demurrer to the complaint. Otto F. Struse, for the appellant. George M. Mackellar, for the respondent. WOODWARD, J. : The complaint alleges, in so far as it relates to the defendant Lawrene, that he was, on the 3d day of March, 1900, the owner of certain premises in the borough of Brooklyn, and that on said third day of March he entered into an agreement in writing with the plaintiff, wherein and whereby the said defendant authorized the plaintiff to take all lawful proceedings to obtain compensation for the said premises, which were then proposed to be taken by the defendant the city of New York, for a portion of the approach to Second Department, May, 1910. [Vol. 138. the new East river or Williamsburgh bridge, and that by the terms of said agreement said defendant Lawrene agreed to pay, and assigned to the plaintiff for all services to be rendered by him in obtaining such compensation, twenty per cent of the amount over and above the sum of $16,500 which should be awarded for damages for the taking of said premises by the defendant the city of New York. The complaint further alleges that subsequently the city of New York instituted proceedings for the acquisition of the said premises; that commissioners of estimate and appraisal were duly appointed and entered upon the discharge of their duties, and that the plaintiff appeared in such proceedings on behalf of the defendant Lawrene; that subsequently, under the provisions of section 1436c of the Greater New York charter (Laws of 1901, chap. 466), the plaintiff prepared an offer on behalf of the defendant Lawrene for the sale of the said premises for the purposes contemplated in the proceeding, and that he duly submitted such proposal to the proper officials; that subsequently the defendant Lawrene and the defendant the city of New York entered into negotiations for the sale of the said premises, which negotiation resulted in the sale of the same for the sum of $19,500, and that the said premises were conveyed by the defendant Lawrene to the defendant the city of New York, and that the latter paid to the former the sum of $19,500, notwithstanding that the plaintiff had duly notified the defendant the city of New York of his rights in the premises. The city of New York has answered in the action, and the defendant Lawrene interposed a demurrer that the complaint does not state facts sufficient to constitute a cause of action. The learned court at Special Term has overruled the demurrer, and from the interlocutory judgment the defendant Lawrene appeals. The appellant urges that the alleged agreement between the parties is annexed to the complaint and expressly made a part thereof, and that its legal effect must be gathered from the instrument itself and not from allegations in the complaint characterizing its legal effect, and the argument deduced is that the instrument does not assign, or purport to assign, any interest in said property or any interest in any amount to be awarded, and that any allegations in the complaint that the defendant Lawrene did assign to the plaintiff any interest in the premises or in the award therefor in the pro App. Div.] Second Department, May, 1910. ceeding must be disregarded, citing Black v. Homœopathic Mutual Life Ins. Co. (47 Hun, 210). Assuming that this is the law, and that we are to disregard the allegation of the complaint that the instrument assigned something to the plaintiff, we are unable to see how this has any particular bearing upon the case, if the contract of employment set forth in such agreement was between an attorney and his client, for in that event the statute (Code Civ. Proc. § 66, as amd. by Laws of 1899, chap. 61; revised into Judiciary Law [Consol. Laws, chap. 30; Laws of 1909, chap. 35], § 475) provides that "From the commencement of an action or special proceeding, or the service of an answer containing a counterclaim, the attorney who appears for a party has a lien upon his client's cause of action, claim or counterclaim, which attaches to a verdict, report, decision, judgment or final order in his client's favor, and the proceeds thereof in whosoever hands they may come, and the lien can not be affected by any settlement between the parties before or after judgment or final order." It cannot be doubted that the contract of employment, made a part of the complaint, shows upon its face that it is a contract between an attorney and his client, and the provisions of the Code of Civil Procedure as revised into the Judiciary Law above quoted have been construed to give the attorney a lien upon the fund created by the settlement of an action or special proceeding. (Fischer-Hansen v. Brooklyn Heights R. R. Co., 173 N. Y. 492.) The contract herein set forth is in legal effect the same as that involved in Matter of Bassford (36 Misc. Rep. 732), and in that case there was no question of the attorney's right to recover, the only question seriously urged being that he was not entitled to interest upon his share of the award. (See Matter of Bassford v. Johnson, 172 N. Y. 488.) In Harwood v. La Grange (137 N. Y. 538) it was held that when an attorney renders services in an action under an agreement that he shall receive his compensation out of the proceeds thereof, he has an equitable lien upon or ownership, as equitable assignee, in such proceeds, and that is the plaintiff's theory in the present case. While it may be that he has not stated his case as clearly and concisely as might be desired, as against a demurrer, we are of the opinion that it is not open to the objections urged. The plaintiff sets forth as a part of his complaint a copy of a notice served upon |