Majority
p. 531Abraham Davis, Rep’t, v. Peter Bowe, late sheriff, App’t. (New York Superior Court, General Term, Filed December 31, 1886.)
Headnote
1. Arrest—When action for false arrest may be maintained againstTHE SHERIFF.
Where a party was on the limits, having been arrested on a body execution on a judgment for costs, and the attorney for the judgment creditor signed an order for his discharge, after which the sheriff again took him into custody, claiming that only the judgment creditor could sign the discharge: Held, that the sheriff was liable in damages for false arrest.
8. Costs—Attorney’s lien.
Although costs of the successful party belong legally to the party, yet the attorney has a lien on them for the amount of his compensation, which may or may not exceed the amount of the costs as taxed, and for this reason the attorney is master of the judgment for costs and of the remedies given for its collection.
The plaintiff was on the limits, having been arrested on a body execution on a judgment for costs. The attorney for the judgment creditor signed an order for his discharge. Thereafter the sheriff again took him into custody, claiming that only the judgment creditor could sign the discharge. In this action for false arrest plaintiff recovered damages. The sheriff appealed.
Mr. Graham, for appl’t; Mr. McCloskey, for resp’t.
The learned judge below, in denying defendant’s motion for a new trial, was inaccurate in saying that in this state the costs, of the successful party belong legally to the attorney. They legally belong to the party. 48 Supr. Ct., 215. But the attorney has a lien on them for the amount of his compensation, which may or may not exceed the amount of the costs as taxed.
It is for this reason that the attorney is master of the judgment for costs and for the remedies given for its collection. But notwithstanding the fact that a wrong reason was given, the case was correctly disposed of both at the trial and on the motion for a new trial.
The judgment and order should be affirmed, with costs.