Brooks v. Hanford — 15 Abb. Pr. 342

Majority

p. 342

BROOKS a. HANFORD.

Supreme court, Second District; General Term,

December, 1859.

Headnote

Assignabilty.—Set-off.—Attokney’s Lien.

The right of action for a personal tort is not assignable, even after verdict thereon. The right of set-off is superior to the attorney’s lien.^[1]

Appeal from an order of the City Court of Brooklyn, directing judgments to be set off.

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This was an action hy Daniel Brooks against William BL Hanford, to recover damages for assault and battery. The facts-are fully stated in the opinion.

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Charles M. Briggs, appellant, in person.

Richard, H. Huntley, for the respondent.

I. The appeal should be dismissed. (Code, § 325; Martin a. Kanouse, 2 Abbotts' Pr., 390.)

II. This action for assault and battery was not assignable till it became a debt. It did not become a debt till judgment. Mr. Briggs can take no right under the assignment. (Crouch a. Gridley, 6 Hill, 250 ; Davenport a. Ludlow, 4 How. Pr., 337 ; Kellogg a. Schuyler, 2 Den., 73 ; Nash a. Hamilton, 3 Abbotts' Pr., 35.)

III. The lien of the attorney is no ground for an objection to the set-off. (Porter a. Lane, 8 Johns., 357 ; Ross a. Dole, 13 Ib., 306; Cooper a. Bigelow, 1 Cow., 206 ; People a. N. Y. Common Pleas, 13 Wend., 649 ; Ferguson a. Bassett, 4 How. Pr., 168 ; Nicoll a. Nicoll, 16 Wend., 446 .)

IV. The attorney has no lien till judgment. (Brown a. Com-stock, 10 Barb., 67 ; Sweet a. Bartlett, 4 Sandf., 661 ; Ward a. Wordsworth, 1 E. D. Smith, 598, 604.)

V. The remedy is properly sought by motion. (People a. N. Y. Common Pleas, 13 Wend, 649 ; Ewen a. Terry, 8 Cow., 126 .) And the plaintiff, having brought himself under the jurisdiction of the City Court, voluntarily submitted to its order. (Kimball a. Munger, 2 Hill, 364 .)

VI. The attorney’s lien is not on the costs as such, but on the entire judgment. The costs belong to the party, and not to the attorney. (1 Rev. Stat., 3 ed., 343; 2 Ib., 703; Code, § 303, last clause; Ward a. Wordsworth, 1 E d. Smith, 598, 604.)

1. This is an appeal from an order made by the City Court of Brooklyn in this action. It appears by the papers that one Samuel Hanford recovered a judgment, before a justice of the peace, against the above-named plaintiff, Daniel Brooks, for the sum of $90.28, on the

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25th of June, 1858, which was docketed in the office of the clerk of the county of Kings, before the trial of the present action. On the 10th of September, 1858, the same was duly assigned to the defendant Hanford. On the 15th day of September, the present action, which was for an assault and battery upon the person of the plaintiff . Brooks, was tried in the City Court, Brooklyn, and a verdict therein rendered for the plaintiff for the sum of $25. Judgment was afterwards perfected upon the verdict for the said sum of $25 damages, and $25 costs, in all $50, but the precise day on which it was entered does not appear.

2. On the 16th day of September, 1858, and before the judgment was entered or perfected on the verdict, the same, with any judgment to be entered thereon, was duly assigned to Charles M. Briggs, the attorney for the plaintiff. And, on the 7th of December, 1858, the City Court, upon due notice, and upon the motion of the defendant, William H. Hanford, ordered the judgment entered up in this action to be offset against the judgment obtained in the justice’s court against the plaintiff Brooks, and which had been assigned to the defendant Han-ford. From this order Charles M. Briggs has appealed.

3. The right of action for a personal tort is not assignable. Such rights do not survive to the personal representatives; they die with the person, and of course do not pass by deed of assignment. This is the settled doctrine. (See Zabriskie a. Smith, 13 N. Y., 322 .)

4. The rendering of the verdict did not alter the nature of the claim. It liquidated the amount of the damages which the plaintiff was to recover, but the claim remained the same. The verdict was but a stage in the progress of the cause, and there was no debt or claim which would pass by assignment until the judgment was perfected. (Crouch a. Gridley, 6 Hill, 250 ; Kellogg a. Schuyler, 2 Den., 73 .)

5. It follows, that Charles M. Briggs took nothing by the assignment.

6. The moment the judgment was perfected the right of set-off attached. The defendant was then, and had been for several days, the assignee and owner of the judgment against Brooks. Bus right was superior to the attorney’s lien. An attorney’s lien is no bar to a bill filed to obtain a set-off, nor is it a bar

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Tvhen the question arises on a trial at law. In Nicoll a. Nicoll ( 16 Wend., 446 ), decided in the Court of Errors, it is said, “Ho-authority can be produced, where the attorney’s lien was ever recognized, on a trial at law, as barring a set-off, the right to 'which would be otherwise perfect.”

The order appealed from should be affirmed.

Footnotes

* Present. Brown, Emott, and Lott, JJ.