Fromme v. Gray — 39 N.Y.S. 856

Majority

p. 856

(17 Misc. Rep. 77.)

FROMME et al. v. GRAY.

(City Court of New York,

General Term.

May 23, 1896.)

Headnote

Set-Off and Counterclaim—Judgment—Attorney’s Lien. Costs awarded to defendant on appeal may be set off against a judgment finally recovered in the action by plaintiff, though defendant assigned such costs to his attorney for his services.

Appeal from special term.

Action by Herman Fromme and Abraham L. Fromme against William E. Gray. From an order denying a motion to offset costs, plaintiffs appeal.

Reversed.

Argued before MCCARTHY and SCHU OHM AH, JJ.

Fromme Bros., in pro. per.

F. M. Littlefield, for respondent.

This is an appeal from an order denying a motion made by the plaintiffs to offset costs, allowed to the defendant on appeal to the court of common pleas and to the court of appeals herein, from the amount of the judgment recovered by the plaintiffs against the defendant herein. At the hearing of the motion, the defendant objected to the granting thereof; on the ground that his attorney had a lien on the costs, and that he had assigned them to his attorney for his services.

Costs primarily belong to the party, but the attorney has a lien thereon for his services. The rule of law is: “Where the several awards asked to be set off against each other were made in the same action, the equities of the parties are superior to the lien of the attorney or the rights of assignees.” See Hopper v. Ersler (Super. 1ST. Y.) 38 N. Y. Supp. 176 , and Winterson v. Hitchings (Com. PI.) Id. 171, and cases therein collated.

The order appealed from is reversed, with costs, and the motion granted, with costs.