Cornell v. Donovan — 12 N.Y. St. Rep. 117

Majority

p. 117

John N. Cornell, Resp’t, v. Daniel Donovan, App’lt.

(New York Common Pleas, General Term,

Filed December 5, 1887.)

Headnote

1. Judgment—Enforcing—Appeal from.

If an appellant seeks to reverse a judgment, he must abstain from enforcing those parts of it that are in his favor, if they be so connected with, or so dependent upon that part that he assails that they ought all to stand or fall together.

3. Attorney’s lien—Right to bring action—Code Crv. Pro., § 66.

Donovan brought an action against Robert G. Cornell, and obtained an order for his arrest therein, having given the required under, aking. The order of arrest was afterward set aside. Upon setting aside said order of arrest, the court awarded certain costs to the defendant. Held, that the attorney could not maintain an action separate from the defendant for said costs. That Code Civil Procedure, section 66, did not give such a right.

Cornell, Secor & Paige, for resp’t; J. C. Wolff, for app’lt.

If an applicant seeks to reverse a judgment he must abstain from enforcing those parts of it that are in his favor if they be so connected with or so dependent upon these parts that he assails that they ought all to stand or fall together. McNamara v. Canada Steamship Co., 11 Daly, 297 ; Knapp v. Brown, 45 N. Y., 210 ; Barker v. White, 58 id., 211 ; Matter of N. Y. C. R. R. Co., 60 id., 117.

The respondent moves to dismiss the appeal in this case on the ground that the appellant, though the judgment was in all respects adverse to him, has pleaded it as a partial defense in an action in which one Robert G-. Cornell is the plaintiff, and the defendant in this suit is the defendant. How the respondent can be prejudiced by this use of the judgment in this action I am unable to discover. If this judgment be right, the respondent can enforce it without reference to the proceedings that have been had in the other action He is not a party to that action; to him all the proceedings therein are res inter alios acta, and he is not affected in any way by them. Moreover, this judg

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ment contained no provision in the appellant’s favor, and the use he made of it was not to secure an advantage that it conferred upon him, but to show the court in the other action that he had been adjudged in this action to be liable to the_ plaintiff here for some of the very damages that the plaintiff in the other action was seeking to recover from him. But as I have already said, the plaintiff could not be injured by the appellant’s use of the judgment, and hence he has no right to complain of that use. The party aggrieved is the one to complain.

The motion to restrain the appellant from prosecuting the appeal should be denied. This judgment is palpably erroneous, and should be reversed: Donovan brought an action against Robert G Cornell, and obtained an order for his arrest. He gave the undertaking required by law on obtaining the order of arrest. The order of arrest was set aside, and thereupon two actions were brought upon the undertaking; one by Robert G. Cornell, and the other by the plaintiff, who is the assignee of John T. Cornell, who was the attorney for Robert G. Cornell.

Of course, the action by the party who was arrested, Robert G. Cornell, was well brought, but this action .had its origin in the notion that the attorney for the defendant had a separate cause of his own upon the undertaking for the costs that were awarded to the defendant when the order of arrest was set aside.

It seems to have been supposed that section 66 of the Code gave to the attorney a right of action upon the undertaking. That section 66 does not give such a right of action is too clear to require discussion. The effect of section 66 has been carefully considered on many occasions, and the change that it effected in the old law is well under - stood. It gives to the attorney a lien upon the cause of action of the plaintiff, or upon the counter-claim of the defendant, so that no settlement can be made by the parties without reference to the compensation that the attorney is entitled to receive. Formerly, the attorney had no lien on the cause of action or the counter-claim, but only on the judgment. No other change in the law was made. Tullis v. Bushnell, 12 Daly, 217 ; Dimick v. Cooley, 3 Civ. Pro. R., 141; Matter of Wilson, 2 id., 151; Stahl v. Wadsworth, 10 N. Y. State Rep., 228.

Something was said at the argument about the undertaking being collateral security. Collateral to what? It is a primary obligation entered into for the indemnity of a defendant who may be arrested improperly. He is the party who is to sue, and whatever damages are recoverable must be obtained in the action that he brings.

It is a waste of time to pursue the matter further The

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plaintiff cannot recover, and the judgment must be re* versed, with costs to the appellant.

Judgment reversed, with costs to the appellant. Larremore, Ch. J., and Daly, J., concur.