#### Lillian E. Hoffstaetter, Appellant, *v.*Charles G. Schinkel and Others, as Executors, etc., of Ernst Hoffstaetter, Deceased, Defendants. Bernard I. Finkelstein, Alleged Lienor, Respondent.

First Department,

June 4, 1915.

Attorney and client — enforcement of lien for services — motion by client to vacate notice of lien pending action to establish same.

The court on a motion by a client will not summarily determine the validity of a lien upon a judgment, filed by an attorney after the. substitution of another attorney, where an action brought by the lienor to foreclose his hen is pending and undetermined. The validity of the lien should be determined in the suit to foreclose it.

Appeal by the plaintiff, Lillian E. Hoffstaetter, from, an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 23d day of April, 1915, denying her motion to vacate and set aside a notice of lien.

*William Copeland Dodge,*for the appellant.

*Hunter L. Delatour,*for the respondent.

Hotchkiss, J.:

The plaintiff Hoffstaetter, by the respondent, Mr. Finkelstein, as her attorney, brought this action against Schinkel and others as defendants. At a certain stage of the action, and before judgment, the respondent consented to the substitution of another attorney in his place and stead, and the action was by this new attorney successfully prosecuted to judgment. On or about March 8, 1915, the respondent served on the defendants a paper entitled in this action and in which he gave notice that he claimed a lien “against the moneys due” to the plaintiff under the judgment to the amount of fifty per cent thereof, in addition to $107.32 out of pocket disbursements. On the 24th day of March, 1915, the respondent commenced an action against the present plaintiff and defendants to establish and foreclose his lien, which action is now at issue undeter*37mined. After the commencement of the foreclosure action this plaintiff moved to vacate the notice of lien and for an order decreeing that no lien existed, which motion was denied and plaintiff appeals.

The parties are not agreed as to the circumstances under which respondent ceased to represent plaintiff as her attorney. Bespondent says that it was because the plaintiff refused to provide him with moneys necessary for the employment of certain expert witnesses whose testimony he deemed essential to success; that he at no time refused to continue to act as the plaintiff’s attorney, but that having warned her that she was incurring a great risk because of her failure to provide him with moneys for the aforesaid purpose, plaintiff announced her determination not to “continue any further with the case,” and demanded that all of the papers be turned over to her, to which demand respondent acceded, and thereupon he delivered to the plaintiff his consent in blank for the substitution of another attorney in his place and stead. Bespondent does not say, however, that at this time he asserted any lien or that there was then reserved any stipulation with respect to a lien. The plaintiff’s story is that respondent without apparent cause refused to proceed with the action and requested her to get another attorney and to that end delivered to her the consent for substitution. It is not necessary for us to determine which of these conflicting statements is true. On her theory of the facts plaintiff asserts that whatever lien, the respondent might have had upon the fruits of the action had he continued to be her attorney of record was *ipso facto*lost when he consented to substitution without asserting a lien. (See General Rules of Practice, rule 10; *Cooper*v. *Cooper,*27 Misc. Rep. 595, 596; affd., 51 App. Div. 595; *Fargo*v. *Paul,*35 Misc. Rep. 568, 570.) Also, that such unconditional consent to the substitution of another was inconsistent with an intent to retain any lien and hence was an implied waiver. (See cases cited in *Matter of Heinsheimer,*214 N. Y. 361.) By her motion below the plaintiff seeks to have not only the facts but the questions of law arising thereon determined in her favor. I do not think this should be done in this summary proceeding. Every question involved can be determined in the respondent’s action to *38enforce his lien in which action his notice of lien may be of value as evidence, for which purpose at least the notice should be allowed to stand for what it is worth.

The order should be affirmed, with ten dollars costs and disbursements.

Ingraham, P. J., Clarke, Scott and Dowling, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.