#### Cecelia J. Zimmer, an infant, by Charles V. Zimmer, her guardian ad litem, Plaintiff, *v.*The Metropolitan Street Railway Co. and The Third Avenue Railroad Co., Defendants.

(Supreme Court, Kings Special Term,

July, 1900.)

Attorney’s lien — How enforced where there is a fund.

Where a judgment recovered by an infant plaintiff is, upon due notice to her and to her attorney and after a hearing, directed to be paid and is paid by the defendants to her general guardian, who satisfied the same and has the money in his hands, the attorney of the plaintiff is not entitled to have the satisfaction vacated to the end that he may enforce his statutory lien as against the defendants, by means of the judgment. The defendants stand only as sureties to the plaintiff in respect of the lien of the plaintiff’s attorney, and there being a sufficient fund out of which such lien can be satisfied, the defendants cannot be proceeded against under such lien.

Petition of Ernest M. Welch, the attorney for the plaintiff, to set aside the satisfaction of a judgment for plaintiff herein for $10,650.76, given by the guardian *ad litem*and general guardian of the plaintiff; for the security and enforcement of the said attorney’s lien for his compensation herein.

Kellogg *&*Rose for petition.

Henry A. Robinson opposed.

Gaynor, J.:

The plaintiff, an infant, obtained through the services of this petitioner as her attorney and counsel, judgment *263against both defendants for $10,000 and costs. On petition of the defendants, an order was made herein on due notice to the plaintiff and her said attorney, and after a hearing, that the said judgment be paid to the general guardian of the plaintiff if one should be appointed within a time limited, and if not that it be paid to the Franklin Trust Co. for the plaintiff. The guardian *ad litem,*her father, was thereupon appointed and qualified as such general guardian, and the judgment was paid to him, he giving a satisfaction thereof. The general guardian still has the bulk of the said judgment, viz., $10,103. The attorney has mistaken his remedy. There is no reason why the judgment should be restored, or why he should look to the defendants in the enforcement of his hen. It seems to be quite lost sight of nowadays that a plaintiff’s attorney can hold the defendant liable under his lien on the cause of action or on the judgment only when his client is irresponsible, and he cannot get the amount due to him. A defendant stands only as a surety in relation to the plaintiff’s attorney under his lien. When his client is sufficiently solvent to be able to pay him, or when, if there be a fund as a result of the litigation, and he can enforce his compensation therefrom, the plaintiff’s attorney cannot maintain an action or proceeding against the defendant to make him liable under his lien. It is only where the action is settled before judgment and the consideration agreed upon is paid to the client without the attorney’s consent, or where the judgment, if there be one, is paid to the client without such consent, and the money is got away with and cannot be impounded, and the client is irresponsible, that the attorney may proceed to enforce his lien against the defendant (Schriever v. Brooklyn Heights R. R. Co., 30 Misc. Rep. 145; Lee. v. V. O. Co., 126 N. Y. 579; Poole v. Belcha, 131 N. Y. 200; Peri v. N. Y. C. R. R., 152 N. Y. 521). And even then he must on well settled principles and rules of practice in analogous cases proceed by a suit in equity, making both the plaintiff and the defendant parties defendant, and get a judgment against such plaintiff for the amount owing, and in default of it being collected of him, against the defendant, for such amount, or such part thereof as is found to be secured by the lien. The case is no different to the foreclosure of a mechanic’s lien and other liens. In reported cases where the lien was foreclosed on motion or petition, the parties consented to that method. The summary method for the court on petition to fix the amount and en*264force the lien provided by the last sentence of section 66 of the Code of Civil Procedure, is between the attorney and his client. That provision has no reference to the opposite party to the action. He is entitled to a trial. But it is not a case where there is a constitutional right to a jury trial, for in equity there never was and is not a right to a jury trial except as given by statute.

The application is denied.