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that need not be proved unless put in issue under oath.81 He is not entitled, however, to move to compel his adversary to verify the pleading, 82 unless it may be in those cases where the law gives him a right to discovery on oath by means of the pleading which has been served without verification.
FORM No. 264. Verification where no other form is prescribed by statute.83 [Venue.]
A. B., being duly sworn, says, that she has read] the foregoing petition [and knows the contents thereof, and that the samest] is true to his own knowledge, 86 except as to the matters therein [stated to be8] alleged upon information and belief, and as to those matters he believes it to be true. [Jurat.]
[Signature.] [For other forms of Verification by officer, etc., see page 326, Form No. 194, etc.; of Pleadings, see chapter on Pleadings in Volume II.; of Assignee's, Receiver's, or Trustee's Account, taken before a referee, see Reference.]
81 N. Y. Code Civ. Pro., § 1776 (allegation taking issue on plaintiff's incorporation). S. P., Newby v. Rogers, 54 Ind. 193 (under statute dispensing with proof of execution of paper sued on, if not denied under oath).
82 Ralph v. Husson, 51 N. Y. Super. Ct. 515 (denying such a motion).
83 Or, required by court rule, or practice.
84 The omission of these bracketed words will not vitiate. See pp. 490, 491.
85 The omission of all after this point will not vitiate, if none of the allegations of the instrument verified are expressed as on information and belief, but all are expressed positively. See chapter on PLEADINGS.
86 The omission of these words will not vitiate the verification as a verification at common law or in equity, but will deprive the instrument of its value as proof. See pp. 486, 487. And these words are required as a part of the settled code form in New York, applicable to pleadings. (Code Civ. Pro., 8526).
PROCEEDINGS BEFORE ACTION. [In addition to the suggestions embodied in this chapter, it may be useful to note, when advising on an action affecting the title to property, or its possession, that the conditions in policies of insurance frequently require notice to the company in order to prevent a forfeiture of the policy by the occurrence of such litigation, and that to protect his client's interests, this point often requires attention from the practitioner.)
ARTICLE I. AGREEMENT WITH CLIENT REGARDING COMPENSATION.
II. ASSIGNMENT OF CAUSE OF ACTION.
V. DEMANDS, NOTICES, AND SECURITIES BEFORE SUIT.
ARTICLE I. AGREEMENT WITH CLIENT REGARDING COMPENSATION. 1. For contingent fee.
share of right of action, to 2. Notice to adverse party.
cover contingent fee. 3. Taxable costs.
(266) Agreement for share of a defiFORMS.
nite fund, when, or if, re(265) Agreement with client for
covered. 1. For contingent fee.]— Whether the agreement between the attorney and client contemplates a contingent, or an absolute fee, it is advisable that it be reduced to written form.
The fee of the attorney may be made contingent upon his success and payable out of the proceeds of the litigation. The attorney cannot agree, as part of his obligation, to pay the costs and expenses of the litigation, or to indemnify his client against the same; such an agreement is within the condemnation of the statute against champertyla (Code Civ. Pro., $ 74) save only where such agreement can be shown to have been in no respect an inducing cause of the retainer and the litigation.”
1 Fowler v. Callan, 102 N. Y. 395. Contra, as to an award of alimony. Matter of Brackett, 114 App. Div. 257; Van Vleck v. Van Vleck, 21 App. Div. 272, 47 N. Y. Supp. 470. But the retainer may be terminated by the client at will, and the attorney acquires no lien for services not performed. Johnson v. Ravitch, 113 App. Div. 810.
la Matter of Speranza, 186 N. Y. 280: Matter of Clark, 184 id. 222.
2 Fowler v. Callan, supra. Where it appeared that the attorney sought the retainer, and for the purpose of inducing the claim to be placed in his hands, offered his services and agreed to pay the expenses of the litigation, the agree
If the agreement provide that the attorney shall receive nothing for his services unless he makes a collection, or recovers judgment, the attorney's death prior to collection, or judgment, leaves his cstate entitled to nothing, not even a quantum meruit.3
The agreement is not to be condemned as unconscionable without proof that it has been induced by fraud, or that the compensation provided for is so excessive as to show the attorney's purpose to obtain an improper or undue advantage. It does not lie in the mouth of a defendant, who settles in violation of the lien, to question the propriety of the amount agreed upon.
For questions as to compensation, arising upon a substitution of attorneys, see chap. XII, Art. I, ATTORNEYS.
2. Notice to adverse party. ]-Before service of the summons, the attorney may protect himself from a settlement by his client without recognition of the attorney's rights only by taking an assignment and serving notice upon the adverse party of its existence.
After action commenced, the agreement with the attorney assumes the character of a statutory lien upon the plaintiff's cause of action, under N. Y. Code Civ. Pro., $ 66, of which all the world must take notice, and any one settling with a plaintiff (or with a defendant interposing a counterclaim) without the knowledge of his attorney does so at his own risk. The parties are not prevented from making an honest settlement; the attorney will be compelled to accept his share of such settlement as a satis
ment was held void. Coughlin v. N. Y. C. & H. R. R. R. Co., 71 N. Y. 443. An agreement by an attorney to take all necessary proceedings, including the commencement of suits, at his own expense, was condemned in Stedwell v. Hartmann, 74 App. Div. 126, 77 N. Y. Supp. 498, 11 Anno. Cas. 283, aff’d, 173 N. Y. 624.
While an attorney is unable to enforce a claim purchased by him in violation of Code Civ. Pro., $ 73, he may assign it and his assignee may enforce it. Beers v. Washbond, 86 App. Div. 582, 83 N. Y. Supp. 993. See also Wightman v. Catlin, 113 App. Div. 24.
3 Badger v. Celler, 41 App. Div. 599, 58 N. Y. Supp. 653.
4 Matter of Fitzsimons, 174 N. Y. 15; Serwer v. Serwer, 91 App. Div. 538, 86 N. Y. Supp. 838_(in each case the agreement provided for fifty per cent. of the recovery). By L. 1902, chap. 60. § 4, the receiver of a moneyed corporation cannot make an agreement with an attorney for his compensation, except upon approval of Attorney-General.
5 Morehouse v. Brooklyn Heights R. R. CO., 43 Misc. 414, 89 N. Y. Supp. 332.
& Peri v. N. Y. C. & H. R. R. Co., 152 N. Y. 521, overruling many decisions of the lower courts that notice to the adverse party was necessary to protect the lien.
faction of his lien. When a judgment is recovered upon the claim, the lien reaches forward and attaches to that also. When the claim is extinguished by a settlement between the parties, the lien fastens upon the fund in the defendant's hands, the instant the agreement of settlement is made, and if the defendant pays the entire fund to an irresponsible plaintiff, the attorney may bring an action in equity to foreclose the lien upon the fund, and defendant will not be permitted to say he has nothing in his hands to satisfy it.
If the attorney is successful the judgment will provide for an execution to be first issued against the defendant client, and if returned unsatisfied then to issue against the defendant who has disregarded the lien.10
The lien of the attorney for his services and disbursements is superior to the right of the adverse party to have a judgment against the client in his favor set off against the other judgment."
If the client voluntarily discontinues without receiving any sum in settlement, there is nothing upon which the lien has fastened except the client's cause of action, which is not extinguished by the discontinuance.12
3. Taxable costs.]— Costs allowed by law, presumptively belong to the client13 and, since the Code, are not the measure of the attorney's compensation in the absence of special agreement.14 An agreement to pay the attorney a share of the amount collected requires the court to award only such share of the costs, even including an extra allowance.15
At common law, an attorney has a lien upon the judgment to the extent of the costs, such lien operating to effect an equitable
7 Peri 1. N. Y. C. & H. R. R. R. Co., supra.
9 Fischer-Hansen's Case, supra. In such an action the client must be made a party defendant as well. Oishei v. Penn. R. R. Co., 101 App. Div. 473, 91 N. Y. Supp. 1034.
In Smith 9. Acker Process Co., 102 App. Div. 170, 92 N. Y. Supp. 351, the court considered that resort to the summary proceeding provided for in $ 66 was preferable to the action in equity -- Sed quære!
19 Morehouse r. Brooklyn Heights R. R. Co., 43 Misc. 414, 89 N. Y. Supp. 332.
11 Smith v. Caruga Lake Cement Co., 107 App. Div. 524, 95 N. Y. Supp. 236. 12 Sullivan 1. McCann, 113 Apr. Div. 61; Matter of Brackett, 114 id. 257.
13 McIlvaine v. Steenson, 90 App. Div. 77, 85 N. Y. Supp. 889; Early to Whitney, 106 Apr. Div. 399, 94 N. Y. Supp. 728.
14 Starin r. Maror, 106 N. Y. 82. 15 Mcllvaire r. Steenson, supra.
assignment of the costs and to defeat an application to have them set off against a debt owed by the client; 10 when a judgment is for costs only, the judgment is itself notice of the lien,"? but if for damages and costs it is not notice even for taxed costs and the lien may only be protected by notice to the judgment-debtor.18 A settlement by the client without costs destroys the attorney's right thereto, under an agreement that he may have “all costs recovered.”' 18
In New York, the statute (Code Civ. Pro., § 66) raises a lien that is effective without notice.20
Prospective costs may be assigned.21
FORM No. 265. Agreement with client for share of right of action to cover contingent fee.22
In consideration of [one dollar to me in hand paid and in further consideration of] the agreement by A. B., attorney at law, to act for me as my attorney in the commencement and prose cution of an action to recover upon a certain claim for damages
16 Delany 0. Miller, 84 Hun, 244, 32 N. Y. Supp. 505, 1 Anno. Cas. 266; Husted v. Thomson, 26 Misc. 548, 57 N. Y. Supp. 558.
17 Marshall v. Meech, 51 N. Y. 140.
22 The matter of the attorney's lien for services, on his client's cause of action, is regulated by section 66 of the Code. The lien created by that section is in addition to the attorney's lien at common law (to retain the client's papers until satisfaction of his claim, or to apply funds received by him in the action). Matter of Wilson, 2 N.Y.Civ. Pro. Rep. 343. It attaches to the cause of action, claim, or counterclaim, from the commencement of the action, or the service of the an
(8 66.) To protect himself before suit brought from a settlement by the client, an attorney may, therefore, take an assignment, if the cause of action is assignable (see Oliwell v. Verdenhelven, 7 N. Y. Supp. 99, 17
Civ. Pro, 362), and notice of such assignment must be given.
After action begun, no notice of lien need be given. Peri r. N. Y. C. & H. R. R. R. Co., 152 N. Y. 521. A defendant settling without the knowledge of plaintiff's attorney does so at his own risk (id.), and if the attorney is thereby deprived of his share by reason of his client's insolvency or departure, he has an action in equity against the original defendant to foreclose his lien. Fisher-Hansen Brooklyn Heights R. R. Co., 173 N. Y. 492. It matters not that the cause of action is not assignable, and the agreement made before judgmeni. Serwer 1. Serwer, 91 App. "Div. 538, 86 N. Y. Supp. 838.