In re Goodale

Granting that the settlement of the actions and the satisfaction of the judgments by the nominal plaintiff was a fraud upon his assignor and that there is a fair suggestion of bad faith upon the defendant’s part, still the denial of the application to set aside the settlement, made at the instance of the plaintiff’s attorneys of record, was a proper exercise j>f discretion. The papers before the court below left no doubt of the fact that these attorneys were retained by and performed their services for the plaintiff’s assignor, whose solvency was undisputed and against whom their actual claim for compensation existed and still exists. It may well be that this assignor, Fusco, was hardly treated, and, of course, if there was a collusive settlement in actual *183fraud of his rights, he has his remedy against the defendant; but the attorneys are in no position to insist upon the' protection of their lien by summary order, since the fact of prejudice of their rights, in the matter of collecting payment for their services, an element essential to the application (Poole v. Belcha, 131 N. Y. 200), does not exist.

Gildeesleeve and MacLean, JJ., concur.

Order affirmed, with ten dollars costs and disbursements.