Adsit agt. Hall.

lien is given upon the cause of action, and that such lien attaches to any verdict, report, decision or judgment in his client's favor. The lien is not in terms upon the judgment.

This lien being upon the cause of action, it seems to me, must continue until a judgment is rendered in the action which is final, either for want of power to appeal or for failure to appeal in time, by which judgment it shall have been determined there was no cause of action, and so nothing to support a lien.

It seems to me unreasonable to hold that the lien ceases when a judgment has been rendered against the cause of action until such judgment becomes final; for such judgment may be reversed and the cause of action be established in favor of the plaintiff by another judgment.

If the first, and perhaps erroneous, judgment destroyed the lien, thereafter there could be no lien, for the statute provides that the commencement of the action shall create the lien, and not the reversal of a judgment, or any subsequent stage or condition of the action.

The logical sequence of holding the lien ceases by the first adverse judgment would be, that plaintiff's attorney would have no lien for his services, although the court should finally decide the plaintiff had a good cause of action, and his attorney had removed an erroneous judgment to have the cause of action established.

My conclusion is, that plaintiff's attorneys have a lien until it is finally determined there is not, and was not, at the time of the commencement of the action, a cause of action.

The next question is, whether the plaintiff's attorneys have the right to compel the plaintiff to prosecute, at her expense, the appeal brought by them, to determine whether the plaintiff has a cause of action, and to render their lien thereon available to them.

The statute has given the attorney a lien upon his client's cause of action, upon which the attorney has commenced an action. It is not perceived why this lien is, or should be, any different from any other lien which one man may give another

Adsit agt. Hall.

upon any article of tangible property, or the lien which a party, by contract, may give his attorney upon the cause of action for

his services.

In either case is the right or lien anything more than a simple lien? Does it involve or imply, without an agreement to that effect, any obligation upon the part of the party giving the lien, to prosecute the same at the expense of such party, or to allow the attorney to prosecute the lien in the name and at the expense of such party?

This species of lien, like any other lien, I apprehend, would be satisfied by the payment, or tender of payment, of the money it was given or intended to secure. But, until satisfied, it is a valuable and beneficial right of the attorney, and of which the courts should not permit its officers, who have, in good faith, expended their talents, time and money, to be deprived any sooner or differently than they would others not officers of the

court.

Their rights, while not any more sacred than the rights of such others, are not less sacred. Every claimant of a right should be permitted by the court to resort to any remedy most available for that purpose, and consistent with the power of the court and in accordance with its rules and protection.

What remedy has the plaintiff's attorneys to make their lien available under the circumstances of this case? As we have seen, a judgment has been rendered upon the merits against the plaintiff's cause of action. While that judgment remains the plaintiff has no cause of action, and her attorneys practically have, by the judgment, lost the benefit of their lien.

The plaintiff is not disposed to appeal, but is content with the judgment. But her attorneys, who have a lien upon the cause of action for what the plaintiff owes them, and which lien may be the only means by which they can secure payment of the debts, are not contented with the judgment. They wish to remove the judgment as an obstacle in the way of enforcing the lien. An appeal has been brought, and is pending, by

Adsit agt. Hall.

means of which plaintiff's attorneys profess they will be able to remove the judgment and make their lien available.

The plaintiff does not deny that she owes the debt, but makes no offer or effort to pay it. Why should she refuse to allow her attorneys to prosecute the cause of action she professed to have against the defendant, at their own expense, to secure the debt she owes them, but has not the means or the disposition to pay them?

If the plaintiff's attorneys are right or sincere in thinking that the judgment, as an obstacle to their lien, can be removed, or if they prefer to resort to that mode to obtain payment of their debt rather than to bring an action directly against the plaintiff for the debt, why should they not be allowed to do so by prosecuting such appeal at their own expense, and assuring the plaintiff against all risk of costs to the defendant upon the appeal? Such a course seems to me to be manifest equity.

The plaintiff had or professed to have a cause of action against the defendant. She brought an action and retained attorneys to establish such cause of action. By so doing and by operation of law the attorneys acquired a lien or interest in such cause of action, and from the commencement of the action the plaintiff and her attorneys had an interest in that cause of action. The plaintiff may sacrifice or abandon the interest that she has in the cause of action, but she may not sacrifice or prejudice the interest which her attorneys have in it. Such right with corresponding remedy is plainly recognized, if not provided for, in section 1206 Code of Civil Procedure.

The plaintiff applies to the court, therefore, for a favor, and not an absolute right, under these circumstances. It should not be granted without protecting the rights of her attorneys, which are involved with her rights.

I think the proper order to be granted upon this motion would be substantially this, viz.: That the appeal herein be dismissed upon plaintiff paying or securing to pay plaintiff's attorneys for their services in this action down to the time when the judgment herein was entered, or in case the attorneys herein.

People ex rel. Evans agt. Letson et al.

signify a willingness to abandon and release their lien, and to resort to plaintiff's personal liability for such services within a reasonable time; but in case the plaintiff does not pay or secure to pay, and the attorneys do not signify an election to abandon their lien and to resort to plaintiff's personal liability for their services, it should be ordered that plaintiff's attorneys be allowed to prosecute said appeal at their own expense, and upon furnishing the plaintiff with security, to be approved by a judge of this court, against the payment of any costs of the appeal that may be awarded to the defendants, or any liability therefor.

SUPREME COURT.

THE PEOPLE ex rel. BENJAMIN EVANS agt. MARY LETSON et al.

Landlord and tenant-Summary proceedings-Code of Civil Procedure, sec' tion 2100-2265-Writ of prohibition—Where justice has jurisdiction, writ will not lie.

Where a petition in summary proceedings presents such a case as the officer can consider, a writ of prohibition will not lie.

Where L. presented a petition to a justice of the peace, praying for the removal of a tenant from certain premises under the provisions of the Code of Civil Procedure, concerning summary proceedings to recover possession of real estate, and the justice issued a warrant which was served upon the tenant, and on the return day he appeared and filed an answer denying each and every material allegation, and also set up new matter, going to the question of title; the petitioner demurred to the answer that it contained no defense, which demurrer was sustained, and a final order granted awarding possession to petitioner, and directing the issuing of a warrant, which was issued and delivered to the sheriff:

Held, that a writ of prohibition would not lie:

Held, further, that the question in the case really is, whether the justice erred in sustaining the demurrer of the petitioner to the answer of the relator. That question cannot be determined by writ of prohibition. It can be by appeal, and, in a proper case, there is a remedy by injunction.

Oneida Special Term, March, 1886.

People ex rel. Evans agt. Letson et al.

HEARING upon an alternative writ of prohibition.

J. A. Steele & J. J. Duddleston, for relator.

H. F. & J. Coupe, for defendants.

MERWIN, J.-It appears from the papers on which this alternative writ was granted, that Mary Letson, on the 1st of March, 1886, presented a petition to the defendant, Sherman, a justice of the peace of the town of Schuyler, praying for the removal of the relator from certain premises in that town, under the provisions of the Code, concerning summary proceedings to recover the possession of real estate. The justice issued a precept which was served on the relator on the 9th of March, and was returnable on the 13th of March. On the return day the relator appeared and filed an answer, by which he "denies each and every material allegation in said petition contained," and also sets up new matter going to the question of title. Thereupon the petitioner, Letson, orally demurred to the answer that it contained no defense, which demurrer was sustained, and a final order granted determining that the relator held over after the expiration of his term, and awarding possession to the petitioner and directing the issuing of a warrant. A warrant was accord

ingly issued and delivered to a constable, who is made a defendant herein, and afterwards delivered to the sheriff, who is also made a party defendant herein.

The position of the relator is, in substance, that the justice in granting the final order, without trying the issue made by the general denial, exceeded his jurisdiction, and that, therefore, it is a proper case for a writ of prohibition.

The justice having granted his final order before the application for the writ, and issued the warrant, the proceeding now is, in effect, an application to stay the execution of the warrant. It has been held that a writ of prohibition does not lie to a ministerial officer, to stay the execution of process in his hands (People agt. Supervisors of Queens, 1 Hill, 200; Ex parte Brandlacht, 2 id., 367), and that this rule is not affected by the pro