Majority
p. 114JONES v. EASTON. N. Y. Superior Court; Special Term, June, 1882.
Headnote
Costs.—Set-off of Motion Costs against Judgment.—Attorney’s Lien.The lien of an attorney upon a “report,” &c., in his client’s favor, given by section 66 of the Code of .Civil Procedure, does pot apply to a report upon a reference ordered in an interlocutory application under section 1015; the costs of such proceeding are motion costs within "section 779, and may on the application of the adverse party be set off against the costs recovered by him on the final judgment.
Plaintiff recovered judgment against defendant for $3,738.33, with costs which were taxed by the clerk at $187.47. Plaintiff had theretofore obtained an order of arrest, which had, upon defendant’s motion, and after a reference, been vacated, with costs and disbursements. Plaintiff’s attorney, upon notice to defendant’s attorney, deducted .from the amount of the costs upon the judgment entered by him, the estimated amount of such motion costs and disbursements, and made this motion, alleging defendant’s insolvency, to set-off such motion costs and to enjoin all proceedings on the part of defendant for their collection.
P. T. Eckerson, for motion.
B.E. Valentine, opposed.
The lien of the attorney upon his client’s cause of action attaches to a verdict, report, decision or judgment in his client’s favor (Code Civ. Pro. § 66). I understand that section not to apply to a report upon a reference ordered under section 1015. The costs
p. 115
upon such a reference are motion costs, and come within section 779, which says such costs may be set off against costs awarded to the adverse party. The plaintiff has obtained a judgment against the defendant for a large amount.. This judgment he shows he cannot collect. He should not be compelled to pay costs to the defendant which have been awarded against him on a motion.