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wise would be to turn the legal profession into one of common barrators, or worse, and degrade it.

It is difficult to see how the contrary notion seemed to have recognition for a time. Prior to the enactment of section 66 of the Code of Civil Procedure attorneys had no lien on the cause of action. They had no statutory lien at all, but only the common-law lien on the judgment for their statutory fees. Prior to judgment they had no lien. By giving the attorney a lien on the cause of action, section 66 did not take away from the plaintiff his right to control and settle the action at will. The lien is subject to the plaintiff's absolute right to settle and discontinue the action whenever and however he may see fit. "The statute by giving the attorney a lien does not make him the principal. The client still remains in control of his cause of action, with the same right to settle which clients always had." Gurley v. Gruenstein, 44 Misc. Rep. 268, 89 N. Y. Supp. 887. The cause of action being extinguished, there is a transition of the lien to the amount agreed upon in settlement, and if no amount be agreed upon, the lien is spent. This is all obvious on the settled principles which govern the relation of attorney and client, and the notion to the contrary which cropped out in some decisions and in expressions in opinions has been giving way fast, and should now be made to give way entirely. In fact recent decisions make it wholly untenable.

It is settled that upon a settlement of the action by the plaintiff, the cause of action is extinct and the lien of his attorney on the cause of action is transferred to the amount agreed upon in settlement. "The right of the parties to thus settle is absolute and the settlement determines the cause of action and liquidates the claim." "Such settlements are not prohibited by the existence of the attorney's lien." Fenwick v. Mitchell, 34 Misc. Rep. 617, 70 N. Y. Supp. 667, affirmed 173 N. Y. 633, 66 N. E. 1108; Fischer-Hansen v. Brooklyn Heights R. Co., 173 N. Y. 492, 66 N. E. 395.

By what authority or on what principle may a court say that if the settlement be made without payment of anything by the defendant the cause of action is not extinguished, and the plaintiff's attorney may be permitted to keep the action alive and prosecute it? It is for the plaintiff alone to say whether he will go on with the action, and if he settles it the cause of action is extinguished whether he be paid little or much or nothing.

But it is said that while this is the rule, it does not apply to "dishonest settlements made to cheat attorneys"; to "fraudulent settlements," as the phrase more commonly is. But this is very far from saying that a settlement without anything being paid by the defendant is a fraudulent one, i. e., against the attorney. No one can think of questioning that it is the right of a defendant to get rid of an action. against him as best he may; for the least payment he can get the plaintiff down to, or for no payment, if he can get him down to that. He is under no obligation to have any regard in making the settlement to what the services of the plaintiff's attorney may be worth. The plaintiff may quit for any sum he sees fit, or for no sum, but only to escape the risk of losing and being charged with costs; and his attorney may

not stand in the way. In getting the best settlement he can, the defendant is not committing any fraud on the plaintiff's attorney, and he is in no way affected by any fraud or breach of agreement between the plaintiff and his attorney.

If, however, the parties should conceal the amount agreed upon in settlement, and state to the attorney that the settlement was for a less sum, or for nothing, in order to deceive and defraud the attorney, he would have the right in the foreclosure of his lien to ascertain the true amount; and if that could not be done with certainty, the court, in order to frustrate the fraud might, no doubt, ascertain as best it could the value of the cause of action, and base the award to the attorney thereon; for in order to frustrate frauds all ordinary rules give way. To do this does not require that the attorney be permitted to prosecute the action notwithstanding it has been settled. That remedy would seldom be otherwise than a barren one. Having lost his client he would as a rule be unable to make any headway with the action. As is well said in a recent case:

"It seems to us from a consideration of these late expressions of the Court of Appeals that we should not favor the continuance of an action for the benefit of an attorney's lien." Smith v. Acker Process Co., 102 App. Div. 170, 92 N. Y. Supp. 351.

Moreover, as it is now settled that the defendant is not a principal, but only a surety to the plaintiff for the payment of the compensation for which his attorney has a lien, the said amount cannot be collected of the defendant by obtaining a judgment against him in the original action. The lien has to be foreclosed against the plaintiff as principal, and the defendant as surety, both being made parties, and the amount cannot be collected of the defendant until the remedy of the attorney has first been exhausted against his client, the plaintiff. Gurley v. Gruenstein, 44 Misc. Rep. 268, 89 N. Y. Supp. 887; Morehouse v. Brooklyn Heights R. Co., 185 N. Y. 520, 78 N. E. 179.

And in addition to the foregoing, in the case at bar the order permitting the attorney for the plaintiff to continue the action did not find that the settlement was fraudulent. It does not appear that any such claim was made on the motion for such permission. The learned judge who tried the case, however, submitted to the jury whether the settlement was fraudulent. He charged that the plaintiff had the right to settle in any way he saw fit, and that the settlement would extinguish the cause of action and the attorney's lien thereon, and transfer it to the amount agreed upon its settlement, but that if the settlement was fraudulent against the attorney by the parties, his lien on the cause of action survived. But there was no evidence whatever of any fraud by the defendant. The action was on a complaint for money loaned in 1902 (the action being commenced in 1906), and the plaintiff's attorney rested on his own evidence which he claimed showed that the defendant borrowed the money of the plaintiff. He gave no evidence whatever in respect of the settlement. It did not appear when he rested but what the defendant had paid the whole amount sued for to the plaintiff; and it cannot be pretended there was any

The evidence of the plaintiff and the defendant, who are brothers, given for the defendant, was that while the money had been loaned, the defendant had afterwards paid it to their brother-in-law on the consent of the plaintiff, and under an arrangement that it was a loan by the plaintiff to the brother-in-law, and that the latter would pay it to the plaintiff. The only dispute between them was over this matter. There is no evidence in the case to support the finding that the settlement of the action was fraudulent as against the plaintiff's attorney, i. e., there is no evidence that instead of settling the case without the payment of anything by the defendant to the plaintiff, the amount sued for, or any amount, was paid, and the fact fraudulently concealed from the attorney.

Finally, there is no evidence in the case to support a finding that the defendant owed the money to the plaintiff when the action was brought. The attorney, having lost his client, testified that when he served the summons and complaint on the defendant he said to him, "Now you know that you borrowed from your brother and he loaned you $500, which is claimed. Now what is the use of your fighting with your brother and incurring expenses?" and that he replied, "Well, I will see about it;" and that afterwards the plaintiff and the defendant came to his office and told him that they were going to settle, and that he said to the defendant, "You know that you owe it." Whether the defendant made any response to this he does not say. The jury were permitted to find that there were admissions by the defendant that he owed the money. They were not admissions. The lack of evidence on the plaintiff's side was not supplied on the defendant's. On the contrary, the testimony for the defendant makes out the defense of payment pleaded in the answer.

The judgment should be reversed.

CAVANAGH v. CENTRAL NEW ENGLAND RY. CO.

(Supreme Court, Appellate Division, Second Department. April 23, 1909.)

1 MASTER AND SERVANT (§ 236*)—INJURIES TO SERVANT-DUE CARE OF SERV

ANT.

Plaintiff, a railway employé, and his foreman, who were waiting for a train to take them home after their day's work, took refuge from the rain in a box car near the depot, which was on a track adjoining the one on which the train was to come. The foreman, hearing the train coming, announced its coming to plaintiff, and left the car by a ladder which was within 2% feet of the rail of the main track, and plaintiff, without taking the precaution to learn how near the train was, followed him, backing down the ladder, and was struck by the train. Held, that he was negligent, precluding recovery.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. 88 681, 683, 723-742; Dec. Dig. § 236.*]

2 Master and Servant (§ 182*)—INJURY TO SERVANT-AUTHORITY OF SUPER

INTENDENCE.

Even if the foreman's announcement that the train was coming was an invitation to plaintiff to alight from the car when it was unsafe to do so, the master would not be liable, as, their day's work being finished, *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

plaintiff and the foreman were not engaged in the performance of any duty to the master, so that the foreman had no authority over plaintiff; and Laws 1906, p. 1682, c. 657, which provides that a railway employé, intrusted with authority of superintendence of another injured employé in the performance of his duty, is not a fellow servant of the injured employé, changes the fellow-servant rule only where the negligence charged is due to the superintendent in directing the performance of duties, and not where the servant and superintendent may act independently.

[Ed. Note. For other cases, see Master and Servant, Dec. Dig. § 182.*]

Appeal from Trial Term, Duchess County.

Action by Martin Cavanagh against the Central New England Railway Company. From a judgment for plaintiff, and an order denying a new trial, defendant appeals. Reversed, and new trial granted. Argued before WOODWARD, JENKS, GAYNOR, BURR, and RICH, JJ.

Charles M. Sheafe, Jr., for appellant.
Charles Morschauser, for respondent.

WOODWARD, J. The plaintiff in this action was a mason's helper, employed by the defendant in building culverts along its railroad line. He lived at Rhinecliff, some 18 miles from the point where he was at work on the 6th day of May, 1907. For a period of 10 days he had been coming to his work on one of the defendant's trains, returning in the evening upon the same train running in the opposite direction. On the day of the accident the plaintiff quit work about 3 o'clock in the afternoon, and, with a small number of fellow employés, took a hand car for Elizaville, at which point he intended taking the train for Rhinecliff. It was raining, and one Kearns, who is referred to as "plaintiff's boss," and who appears to have been the foreman in charge of the culvert builders, suggested or directed that the plaintiff go into a house car standing near the station to await the coming of the train. It does not appear why the plaintiff was sent to the box car rather than to the station, only 56 feet away, or why he was not sent to the toolhouse, directly opposite the station; nor does it appear that Kearns had any possible authority over the plaintiff at this time, the work of the day being over. But the plaintiff entered this house car, which appears to have been used by two of the defendant's employés, in company with Kearns. When the train was within a half a mile of the station the engineer says he blew the whistle, and it is not disputed that Kearns announced to the plaintiff that the train was coming, and left the car by the side door, opening directly upon the track on which the train was approaching, and that the engineer blew several short blasts upon the whistle when he discovered Kearns getting into a dangerous position. Kearns got down and out of the way, and the plaintiff, knowing the location of this car with reference to the track, knowing that the train was coming, backed out of the side door and down a ladder, which the occupants of the car had borrowed for their own convenience, and while he was descending this short ladder, or just as he had reached the ground, he was struck by the engine, at that time coming to a standstill at the station only 56 feet away, receiving the

injuries for which he has recovered a verdict for $500. A number of acts or omissions were suggested on the part of the defendant, but the question finally submitted to the jury was:

"Did this defendant, knowing, or having reason to know, that this house car was used on the side track, and that a ladder was used from it to the ground within 2% feet of the main rail, and used morning and night by men who lived in the house car-did they use due, ordinary, and common care in operating a train so close to the ladder, knowing the use the ladder was put to?"

While the plaintiff testified that he did not hear the train coming, the testimony of the engineer, corroborated by others, is uncontradicted that the whistle was blown a quarter of a mile before reaching the station, that the bell was rung continuously as the train approached the station, and that several blasts were blown as a warning to Kearns, who immediately preceded the plaintiff down the ladder. What more the defendant was called upon to do does not suggest itself to our mind. This house car was not placed where it was for the use of employés generally. It was there for the purposes of the two employés who actually occupied it. There were three other doors to the car, entirely out of danger, and, while it is claimed that these doors were fastened, there is no evidence that they were fastened by the defendant, or that it had any reason to suppose that the door next to the main track would be made use of, even by those who were occupying the car, much less by an employé who was merely in the car for his own purposes. The defendant had provided a depot for the accommodation of passengers, the plaintiff was awaiting the coming of a train, and just why the defendant should have taken any extraordinary precautions to protect him does not appear.

But, aside from the question of the defendant's negligence, the case is barren of any evidence from which the inference can be properly drawn that the plaintiff exercised any reasonable degree of care. He was awaiting the coming of this very train. Kearns was with him in the car, and had announced the coming of the train, and had himself preceded the plaintiff down this ladder, and had been warned by the blowing of the whistle. Assuming that the plaintiff did not hear the train, he had been told that it was coming. Assuming that he did not hear the whistle blown for Kearns, he was aware that the train was coming, and yet he testifies that he backed down this ladder, without, so far as appears, taking the slightest precaution to learn for himself. whether the train was near or not. The suggestion that the plaintiff was invited to alight from this car by Kearns at a time when it was unsafe for him to do so, and that this invitation on the part of Kearns involved the defendant in liability, is absurd. The time has not yet. come when it is the duty of employers to provide nurses or guardians for employés. At the time in question Kearns, if he had invited the plaintiff, was not in a position to command him in any possible sense. Neither Kearns nor the plaintiff was engaged in the performance of any duty which they owed to the defendant. They were merely waiting for a train to take them home after the day's work was completed, and the most that chapter 657, p. 1682, of the Laws of 1906, attempts to do is to provide that:

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