BUTCHER v. HENNING et al.(Supreme Court, General Term, Third Department.Headnote
Appeal—Restitution.Where the defeated party, after a judgment has been affirmed by the general term, and leave to go to the court of appeals denied, voluntarily pays the costs to the attorney of the other party, who applies it in payment of a debt due from his client, such attorney cannot be compelled to refund the sum so paid, though on subsequent rehearing a new trial is granted, and judgment rendered against his client.
Appeal from special term, Saratoga county.
Action by Edward Butcher, Jr., against John L. Henning and another, to recover money paid to defendants as attorneys. From a judgment for defendants, plaintiff appeals. Affirmed.
This action arose out of a previous suit brought by Bullard & Howe, plaintiff’s assignors, against James H. Kenyon and Ellen M. Kenyon, in which the Kenyons recovered judgment, which was affirmed on appeal to the general term, and a motion for leave to go to the court of appeals was denied. Thereafter Bullard & Howe voluntarily paid to defendants herein, who were attorneys of the plaintiff in that suit, the costs sought to be recovered in this action, and defendants, acting on the advice of their clients, applied the sum so received in payment of debts due by their clients for printing, and also as a payment on account. Subsequently a motion for reargument was granted in the suit against defendants’ clients, and upon rehearing the judgment was reversed, the case retried, and judgment rendered against the said Kenyons.
Argued before PUTNAM and HERRICK, JJ.E. G. Bullard (E. F. Bullard, of counsel), for appellant.
John J. Healey, Jr. (William H. McCall, of counsel), for respondents.
In Langley v. Warner, 3 N. Y. 327 , it was held by the court of appeals that where a judgment had been collected, and the money paid to the attorney who prosecuted the suit, an action will not lie against the attorney to recover back the money after a reversal of the judgment, although, by agreement between him and his client, he retained the money in payment of a debt from the latter to him. The facts in the case cited were quite similar to those appearing in the case under consideration. We are not aware that the doctrine established in Langley v. Warner, supra, has ever been doubted or overruled. Grauer v. Grauer, 20 N. Y. Supp. 854 ; Wright v. Nostrand, 53 N. Y. Super. Ct. 381 -386; Simpson v. Hornbeck, 3 Lans. 53 -55; Forstman v. Schulting, 108 N. Y. 110 -113, 15 N. E. 366 .
The judgment should be affirmed, with costs.