On appeal from the Hudson County Court of Common Pleas.
For the appellants, Milton, McNulty & Augelli (Joseph Keane, of counsel).
For the respondent, Carl T. Freggens (Henry J. Sorenson, of counsel).
Before Case, Chief Justice, and Justices Heher and Colie.
The opinion of the court was delivered by
COLIE, J. This is an appeal from an order of the Hudson County Court of Common Pleas, dismissing the petition of the appellants wherein they sought to have the amount of their lien for services as attorneys determined and enforced.
James Culnen, on August 13th, 1943, was in the employ of the Port of New York Authority, directing traffic in the State of New York, when a bus owned and operated by the defendant company struck and injured him. Thirteen months later, on September 28th, 1944, appellants were retained by Culnen to represent him in his claim against the defendant. On July 9th, 1945, appellants filed a summons and complaint
in the Hudson County Court of Common Pleas, seeking damages from the defendant for their client. On August 10th, 1945, the Port of New York Authority brought suit in a New York court against the defendant for the injuries sustained by Culnen. The New York action was settled for $8,500 and a discontinuance filed January 11th, 1946.
The claim of appellants against the defendant company is grounded upon R.S. 2:20-7: "After the service of a summons and complaint in any action at law, * * * the attorney * * * shall have a lien for compensation, upon his client's cause of action, * * * The lien shall not be affected by any settlement between the parties before or after judgment or final order or decree." The lien created by this statute attaches to the "client's cause of action" and if there exists no cause of action, there is nothing to which the lien may attach. Cf. Shaffer v. Shaffer, 129 N.J. Eq. 42, holding that a prerequisite to a lien under R.S. 2:20-7 is a cause of action. It therefore is essential to determine whether James Culnen had a cause of action against the defendant on July 9th, 1945, when appellants filed a summons and complaint on behalf of their client in the Hudson County Court of Common Pleas. In the supplemental answer filed by the defendant thereto, it set up as a defense that the Industrial Board of the State of New York had awarded compensation to Culnen for his injuries which his employer, the Port Authority, had paid, and which Culnen had accepted. The answer further set up that since no action was commenced by Culnen against defendant within one year from the date when his action accrued, his cause of action was assigned by operation of law to his employer.
Before discussing the applicable law of New York, it should be pointed out that the accident occurred in New York and therefore the law of that state is controlling. Harber v. Graham, 105 N.J.L. 213.
The Workmen's Compensation Law of New York, Act. 2, section 29, subdivision 1 reads in part as follows: "If such injured employee [Culnen], * * * take or intend to take compensation under this chapter and desire to bring action ...