Martin v. Kanouse — 11 How. Pr. 567

Majority

p. 567

SUPREME COURT.

Martin agt. Kanouse.

Headnote

A judgment in favor of a party, whether for costs only, or for damages and costs, prima facie, belongs to him. And in order to change this prima facie conclusion of law, a third person in pleading that the judgment belongs to him— it being for costs of the attorney, or for any other reason—must state definitely and certain how and in what manner he is entitled to it.

To make a pleading definite and certain, the remedy is by motion, not by demurrer.

New-York General Term,,

Dec., 1855.

This is an appeal from an order of the special term, pronouncing the defendant’s answer frivolous.

It appears that Oothers & Blucher obtained a judgment against Kanouse, Blucher died, and Oothers, as the surviving partner, assigned the judgment to the plaintiff. Kanouse also

p. 568

recovered a judgment against the plaintiff, and the object of this action was to set off one judgment against the other. The question in this case is, whether the attorney for Kanouse had such a lien for the costs recovered in the suit between Kanouse and the" plaintiff, that the plaintiff cannot set off the judgment which he now holds to the one which stands in Kanouse’s name against the plaintiff.

The answer of the defendant alleges that the judgment in favor of Kanouse is for costs only, no part of which ever belonged to the defendant, but belonged to Garr, as his attorney in these suits, and that the defendant is not the beneficial owner of the judgment recovered in his favor.

John M. Martin, for motion.

A. S. Garr, opposed.

By the court

Prima facie, a judgment in favor of a party, belongs to him, whether it be for costs alone, or for debt, or damages and costs ; and it might follow under a rigid system of pleading, that this prima facie conclusion must continue until the pleader should show how and by what means a transfer of this right was made, so as to justify a different conclusion. Under such a system the answer would be frivolous, because it does not show facts sufficient to change the prima facie conclusion of law.

The real fault in this kind of pleading is, that it is not as definite and certain as it should be, and for that imperfection the supreme court in this district has held the only remedy to be that pointed out by the Code—a motion to make it more definite and certain. The proper course will be to reverse the order of the special term without costs, and leave the plaintiff to move that the answer be made more definite and certain, and that the defendant should show how and in what manner, and for what reason, the costs now belong to the defendant’s attorney ; whether it was by virtue of the attorney’s lien for costs, or by virtue of any special agreement between the defendant

p. 569

and his attorney; and if the last, what this agreement was, and when it was made, whether by parol or in writing.

When the pleadings shall be corrected in these respects, the court must suggest to both parties that it will be their interest to allow the cause to proceed to trial without continual motions.