In Gibson & Cushman Dredging Corp. v. Halliburton Co., Inc., (111 AD2d 741, 490 N.Y.S.2d 237 2nd Dept 1985), the Second Department affirmed the dismissal of plaintiff attorney's "common fund" cause of action holding that it was inapplicable to defendant. In Gibson, a law firm was hired by a general contractor to commence an action against LILCO to recover payments which were due the general contractor pursuant to a construction contract it had with LILCO. The general contractor also entered into a liquidation agreement with one of its subcontractors in which the general contractor agreed to pay the subcontractor a certain amount of the funds it recovered from LILCO. The litigation between general contractor and LILCO settled for about $ 600,000 from which the subcontractor was to be paid approximately $ 85,000.00 out of that settlement. The plaintiff attorneys sought to retain approximately 20% as attorneys fees from the $ 85,000.00 due to the subcontractor and commenced an action against the subcontractor to recover those fees based on the theory of "common fund." Affirming the lower Court's dismissal of the complaint, the Second Department held that the theory of "common fund" was not applicable because the benefit conferred upon the subcontractor was not attributable to the legal services provided by the plaintiff. Rather it arose from the liquidating agreement between general contractor and the subcontractor regarding the distribution of the settlement recovered. The Second Department noted that the legal services rendered by the plaintiff in the suit against LILCO played no role in creating the subcontractor's status under the liquidating agreement. Accordingly, plaintiff could not recover a legal fee from the subcontractor.