New York Court of Appeals, 1892

Bailey v. . Murphy

New York Court of Appeals · Decided November 29, 1892 · Finch

32 N.E. 627; 136 N.Y. 50; 49 N.Y. St. Rep. 82; 91 Sickels 50; 1892 N.Y. LEXIS 1714 (North Eastern Reporter)

Cases that cite this one

15 later published cases cite this decision.

Guliano v. Whitenack (New York Court of Common Pleas 1894)
Woodbury v. Andrew Jergens Co. (2d Cir. 1934)
Machcinski v. Lehigh Valley R. (2d Cir. 1921)
Lundy v. Cappuccio (Utah 1919)
Lowery v. Illinois Central R. R. (Ala. 1915)
Corcoran v. George Kellogg Structural Co. (Appellate Division of the Supreme Court of New York 1917)
James v. Marquette (Appellate Terms of the Supreme Court of New York 1913)
Morton v. Forsee (Mo. 1913)
Curtis v. Metropolitan Street Railway Co. (Mo. Ct. App. 1906)
Taylor v. St. Louis Transit Co. (Mo. 1906)
In re the Judicial Settlement of the Account of Regan (N.Y. 1901)
Pilkington v. Brooklyn Heights Railroad (Appellate Division of the Supreme Court of New York 1900)
Rochfort v. Metropolitan Street Railway Co. (Appellate Division of the Supreme Court of New York 1900)
In re the Judicial Settlement of the Account of Regan (New York Surrogate's Court 1899)
Peri v. New York Central & Hudson River Railroad (N.Y. 1897)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

Finch, J.

The affidavits read on this motion sufficiently show that the settlement made by the plaintiff in the judgment was in fraud of his attorney and injuriously affected his *51 rights. The settlement was made for an amount much smaller than the recovery, accepted by the plaintiff without the knowledge of his attorney and with no provision for his payment, and the former immediately absconded and left the state, and is alleged to be wholly irresponsible. Under such circumstances, the order of the Special Term vacating and setting aside the satisfaction entered of record as against the claim of the attorney for his compensation was proper, and should be affirmed without modification so far as it awards that relief. But it went further. It assumed to fix a counsel fee of one hundred dollars, as due from the plaintiff to his attorney, beyond the taxed costs to be protected by the lien. On this motion the court was not at liberty to determine the amount of compensation due to the attorney, if any, over and above the amount of the taxed costs. The latter were presumptively the measure of the attorney’s right, and if he was entitled to more by virtue of some express or implied agreement, that amount must be first liquidated in some proper action between the attorney and his client, and cannot be arbitrarily determined upon a motion to vacate the satisfaction entered. The client has the same right to defend against such an asserted liability as belongs to him when any other claim is alleged, the existence or amount of which he disputes.

The order should be modified by striking out so much of it as awards a counsel fee, and, as modified, affirmed, without costs to either party on this appeal.

All concur.

Ordered accordingly.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.