Hyperlawhypertext legal database Dienst v. McCaffrey 32 N.Y.S. 818

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Dienst v. McCaffrey

32 N.Y.S. 818 Court N.Y.C.P. English

Delivered by PRYOR, J.

Contents

Majority

p. 818
DIENST et al. v. McCAFFREY et al.
(Common Pleas of New York City and County, Special Term.
February, 1895.)

Headnote

Attorney and Client—Lien on Judgment in Supplementary Proceedings.
The lien of an attorney on a judgment rendered in favor of his client is prior to the lien thereon acquired by a judgment creditor of the client in supplementary proceedings.
Action by Adam P/Dienst and others against William H: Mc-Caffrey and others. Defendants’ attorney moves to vacate an order made in supplementary proceedings requiring payment to plaintiffs of the amount of a judgment recovered by defendants against a third person. Granted.
James Kearney, for the motion.
J. Homer Hildreth, opposed.

An attorney’s lien on a judgment for his costs and compensation, though without notice, prevails over the lien of the creditor in a supplementary proceeding against the party recovering the judgment. Upon the examination of a third party in a supplementary proceeding, it was discovered that the execution debtor held a judgment against him, and thereupon an order was entered requiring him to pay the judgment in satisfaction of the execution creditor. The attorney who procured the judgment now intervenes, with a motion to vacate that order and to protect his lien. • The judgment against the third party is, of course, available only to the extent of the execution debtor’s interest in it. The attorney has. a lien on the judgment for the amount of his costs and compensation. Washburn v. Mott (Cir. Ct.) 12 N. Y. Supp. 111 ; Guliano v. Whitenack (Com. Pl. N. Y.) 30 N. Y. Supp. 415 ; Lee v. Oil Co., 126 N. Y. 579 , 27 N. E. 1018 ; Palmer v. Van Orden, 64 How. Pr. 79 . Notice of the lien is not necessary to its efficacy. Keeler v. Keeler, 51 Hun, 505 , 4 N. Y. Supp. 580 ; Guliano v. Whitenack, supra; Washburn v. Mott, supra. The motion is granted, with costs; but, finding in the papers no proof of the amount of the attorney’s compensation, it must be ascertained upon a reference. 1 Bliss’ Code, p. 77.

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