Spors v. Shultheis — 28 N.Y. St. Rep. 50

Majority

p. 50

August Spors, Resp’t, v. Sette Shultheis, App’lt.

(Supreme Court, General Term, Fifth Department,

Filed December 30, 1889.)

Headnote

Attorney and client—Lien of attorney—Restoring judgment where SATISFIED BY CLIENT—CODE ClV. PRO., § 66.

Plaintiff’s attorney had obtained for him three judgments upon notes of Charles Shultheis. The wife of the latter gave her note in satisfaction, which included forty dollars, the lien of the attorney in the former actions, and the original indebtedness of her husband, and judgments were entertained against her on said notes. Plaintiff, without consent of his attorney, discharged the judgments, but they were restored on motion of hiS’ attorney, to the extent of his lien. Held, no error; that to the extent of the costs of the first actions the attorney owned the right of action as represented by the new notes taken from the wife, and the right of the attorney could not be defeated by any action of the plaintiff.

Appeal from order of the special term of Brie county, entered on the 1st day of August, 1889, setting aside the satisfaction of three judgments entered upon three several promissory notes in favor of the plaintiff and against the defendant, and restoring the lien of such judgments to the extent of the amount of the costs due the attorney for the plaintiff in each of said actions.

F. H. Marsh, for app’lt; William L. Jones, for resp’t and in person.

Prior to the 13th of January, 1888, the plaintiff had received from one Charles Shultheis, the defendant, four promissory notes, three of which were each in the sum of $100, and the other in the sum of sixty dollars, for an

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antecedent debt owing by the maker of the notes to the plaintiff. Three of these notes were severally put into judgment against Charles Shultheis by the plaintiff, acting by his present attorney, Mr. Jones, in the months of November and December, 1887, and January, 1888. This defendant, the wife of the maker of the above-mentioned notes, gave her promissory notes to the plaintiff in payment or satisfaction of the notes of her husband, upon three of which, each in the sum of $100, judgment was entered against her June 8th, July 10th, 1888, and May 25th, 1889.

These notes, so executed by the wife, and which were thus put. into judgment, represented the amount of the lien of the attorney in the actions against Charles Shultheis in the sum of forty dollars, together with the original indebtedness owing by Charles to the plaintiff.

In the month of May, 1889, after thé entry of the last judgment above-mentioned, the plaintiff, without the consent or knowledge of his attorney, discharged these three several judgments against this defendant. Upon a motion of the attorney of record for the plaintiff these satisfactions of judgment were set aside to the extent of reinstating the judgments so as to secure the lien of the attorney created by the sixty-sixth section of the Code of Civil Procedure.

As the learned justice at special term holds, the costs of the first actions against the husband, amounting to forty dollars, which went into the settlement, was a debt owing by the plaintiff to his attorney. To that extent the attorney owned the right of action as represented by the new notes taken from the wife. The money to be collected thereon would be received for his benefit and his right to recover it could not be defeated by any action on the part of the plaintiff in the absence of an actual payment thereof.

It is urged upon our attention quite strenuously that the special term erred in deciding that it was established that the suits in which these judgments were recovered for the plaintiff against this defendant were commenced under the plaintiff’s retainer. If this were true, in point of fact, a strong argument could be based thereon favoring the absolute right of the plaintiff to repudiate the settlement with Charles, and to refuse to receive the notes of his wife in lieu of his indebtedness and consequently to repudiate the judgments which were entered thereon. An inspection of the affidavits, however, shows that the learned justice at special term was quite correct in his conclusions that it was established that these suits were instituted and the judgments recovered thereon under the retainer and authority of the plaintiff. The affidavit of the plaintiff is not sufficient to overcome the positive assertion of other persons and the controlling circumstances of the case, particularly as the plaintiff is shown to be a person of treacherous memory and vacillating purpose.

The order appealed from should be affirmed, with ten dollars costs and disbursements.

Barker, P. J., and Dwight, J., concur.