Strauss v. Seamon — 18 N.Y. St. Rep. 942

Majority

p. 942

Joseph Strauss, et al., App’lts, v. Morris Seamon, Resp’t.

(City Court of New York, General Term,

Filed October 26, 1888.)

Headnote

1. Attorney’s lien—Prevents set-off of interlocutory costs against JUDGMENT.

A judgment was entered on January 16, 1888, in favor of the plaintiffs- and' against the defendant. An attachment procured by the plaintiffs against the property of the defendant was vacated on appeal, with costs, costs were offset against said judgment. An appeal from the order vacating the attachment was dismissed with costs to the defendant, which were taxed on June 36, 1888. On March 15, 1888, the defendant, by an instrument, in writing, under seal, assigned all his right, title and ¡merest in and to all costs that might be awarded to him on the appeal last mentioned, or otherwise. An appeal from an order denying a motion made by plaintiffs’ attorney for an order directing a part of the judgment entered in favor of the plaintiffs and against the defendant to be set-off against the bill of costs taxed in favor of the defendants June 36, 1886. Held, that by Code of Civil Procedure, § 66, an attorney has a lien for his services from the commencement of an action, which attaches to-a verdict, report, decision or judgment in his client’s favor, and the proceeds thereof in whosoever’s hands they may come, and which cannot be affected by any settlement between the parties before or after judgment; that such a judgment, etc., belong to the attorney, and will not be set off.

3. Costs—Assignment of interlocutory costs prevents set-off against-JUDGMENT.

Held, that if the provision quoted does not govern the case, the defendant having assigned the costs that might be awarded on the appeal, or otherwise, they could not be set off against the judgment.

Appeal from an order made July II, 1888, by Pitshke, J , denying a motion made by plaintiffs’ attorney for an order directing that a part of a judgment entered in favor of the plaintiffs Strauss and others against the defendant Seamon, be set off against a bill of costs taxed in favor of the defendant against the plaintiffs on June 26, 1888.

A judgment was entered on the 16th day of June, 1888,

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in favor of Joseph Strauss and others, plaintiffs above named, and against Morris Seamon, above named defendant. An attachment procured by the plaintiffs against the property of the defendant was vacated on appeal to the general term of this court, with costs, which costs were offset against said judgment.

Plaintiffs thereupon appealed from the order of the general term vacating the attachment, to the general term of the court of common pleas, which appeal was dismissed with costs to the defendant and respondent, and against the plaintiffs and appellants, on the appeal; and which costs were subsequently taxed at the sum of §62.47-100 on June 26, 1888.

On March 15, 1888, the defendant- by an instrument in writing under seal, assigned all his right, title and interest in and to all costs that might be awarded to him on the appeal to the court of common pleas or otherwise.

A motion was made by plaintiff’s attorney for an order directing that a part of said judgment entered in favor of plaintiffs be set off against said costs on appeal ($62.47-100) taxed in favor of the defendant; and upon the hearing or said motion the order appealed from was made.

E. G. Kremer, for app’lts; S. F. Kneeland, for resp’t.

An attorney has a lien for his services from the commencement of.an action, which attaches to a verdict, report, decision or judgment in his client’s favor and in the proceeds thereof in whosoevers hands they may come, and cannot be affected by any settlement between the parties before or after a judgment. Code, § 66.

And no notice of lien on a judgment which is exclusively for costs and disbursements is required, as the record itself is sufficient notice of such a lien. Wright v. Fleming, 10 Wkly. Dig., 450 .

Such judgment belongs to the attorney, and will not be set off. Gihon v. Fryatt, etc., 2 Sandf., 638 ; Sweet v. Bartlett, 4 id., 661 .

The above were decided at the general term of the superior court.

In Marshall v. Meech (51 N. Y., at p. 143), Justice Earl, in his opinion, says:

“It has long been settled that an attorney has a lien for his costs and compensation upon the judgment recovered by him * * * To the'amount of such lien, the attorney is to be deemed an equitable assignee of the judgment. To the extent of the taxed costs entered in the judgment, the judgment itself is legal notice of the lien, and this lien cannot be discharged by payment to any one but the attorney, ”

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The hen of the attorney attaches not only to a verdict or judgment, but to a decision. See Code, § 66.

In Turnstall v. Winton ( 31 Hun, 219 ), Justice Daniels, in his opinion, says:

“They were the costs of a successful appeal from an order and without any assignment to the defendant’s attorney legally belonged to him.”

Should, however, there be any question on this point the assignment made by the defendant of the costs herein to-his attorney will prevent a set off.

In Garner v. Gladwin (General Term, Supreme Court, 12 Week. Dig., 9), it was held: That the plaintiff had a right, to have the costs recovered by defendant set off against the damages recovered by plaintiff in the same action, unless it. appears that the party defendant prior to the verdict, the time when such right attaches in favor of plaintiff had assigned his claim which might accrue for costs to his attorney, and that such assignment before verdict, would deprive the plaintiff of the right which he would otherwise-have to set off the defendants costs in the same action.

And that costs of a motion cannot be set off against other motion costs, after the latter have been assigned to the party. Wellman v. Frost, 38 Hun, 389 .

The fact that the signature to the assignment is neither acknowledged nor proven, is immaterial. It is set forth in and forms part of the appeal book, and which we are to-consider on the appeal.

It does not appear that any objection was raised to its admission, or that the question of its proper acknowledgment or proof of execution was raised before the justice on the hearing of the motion at the special term.

In Smith v. Chenoweth (6 N. Y. State Rep., 232), which was an appeal from the general term of the city court to the general term of the court of common pleas, the same question as in the case now before us was passed upon. The general term of this court held that such costs could not be off set; the common pleas reversed the ruling of this court, and held that the costs awarded the defendant may be set off against the judgment awarded in favor-of the plaintiffs notwithstanding the defendant’s attorney has a. lien upon such costs for his compensation.

In the case last cited there was no assignment to the defendant’s attorney of the costs sought to be off set; and consequently that question was not considered or passed upon by the common pleas.

In Perry v. Chester ( 53 N. Y., 240 ), which was a case in which the question of the right to off set a judgment obtained by plaintiff against the costs of the defendant’s attorney was considered, Judge Church in his opinion says:

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<e Patting the case inthe most favorable view for the defendant, the question here is whether a party having a judgment against another is entitled to set it off against a judgment for costs, in a subsequent litigation commenced by such party against the rights of the attorney who obtained the latter judgment; which rights were secured by an express contract inwriting, transferring such costs to him before any judgment was rendered.

“There is clearly no legal right for the reasons before stated, and I am unable to appreciate any superior equity. Such a contract is valid, and if founded upon professional services to be rendered in the case, the consideration is ample and meritorious. If such a transfer was denied to a party, he might be practically deprived of the right of interposing a defense. A person sued has a right to secure his attorney with the prospective costs against his adversary in consideration of the services to be rendered in earning such costs.” See Rooney v. Second Ave. R. R. Co., 18 N. Y., 368 ; McGregor v. Comstock, 28 id., 237.

Order appealed from must be affirmed, with costs.

Nehrbas, J., concurs.