Peetsch v. Quinn — 56 N.Y. St. Rep. 607

Majority

p. 607

Henry C. L. Peetsch, App’lt, v. William H. Quinn, Resp’t.

(New York City Court, General Term,

Filed Novemmber 27, 1893.)

Headnote

1. Abatement and revivor—Entry of decision.

In the absence of positive proof as to the exact time of the defendant’s death on the day when the decision was handed down and filed, the presumption is that it was filed during the lifetime of the defendant.

2. Same.

In such a case it is not necessary to revive the action in order to enter the order of affirmance.

3. Same.

The court may direct that the order be entered nunc pro tunc.

4. Same.

An attorney, who has a lien on the costs, is entitled to enter a judgment and issue an execution for the collection of the same.

Johnson & Johnson, for app’lt; Michael H. Curran, for resp’t.

This is an appeal from an order denying a motion to vacate a judgment entered in this action on June 22, 1893, and also directing that the order of affirmance entered November 20,1801, and the judgment entered June 22, 1893, be entered nunc pro tunc as of the date of the decision of the general term of this court, to wit, November 16,1891. The affidavits on this motion as to the time of the death of the defendant are conflicting, and in the absence of positive proof as to the exact time of his death on the day when the decision of the general term of this court was liandéd down and filed, we must hold and the presumption is that it was filed during the lifetime of the defendant. It was, therefore, not necessary to revive the action in the personal representatives of the defendant in order to enter the order of affirmance not the judgment of affirmance. See § 763, Code of Civil Procedure. The appellant’s counsel concedes this to be correct, if the decision occurred before the defendant’s death. All his authorities refer to cases where the party died before the decision was made. The fact of the time of defendant’s death was found against him by the justice who heard the motion, for such me must assume he did in arriving at his decision. Under the prayer, “ for such other and further order or relief, or both, as to court or justice may seem proper,” the justice had a right and power in the interest of justice and the exercise of his sound discretion to direct that the order and judgment spoken of should be entered nunc pro tunc. See Bergen v. Wyckoff, 1 Civil Proc. Rep., pp. 1-9, also in 84 N. Y., pp. 659, 660; Long v. Stafford, 103 N. Y., 274 , 281, 282; 3 St. Rep., 87 .

The only other question to consider is, did the attorney have the power to enter this order of affirmance and judgment. I think from an examination of the papers he had. It appears uncontradicted that Curran was the attorney for the defendant from the commencement of the action; both at the trial through which under the rules and practice, a judgment for costs in favor of the defendant amounting to the sum of $19.12 was.

p. 608

entered. That the plaintiff appealed to the general term of this court which affirmed the judgment, and Curran, the attorney, thereupon taxed his costs and entered judgment for the same, amounting to $89.45. That he, Curran, paid all the disbursements in the case on appeal and also the disbursements included in the original judgment. He then had an attorney’s lien on these costs and most be deemed an equitable assignee of the same, and was entitled to enter the judgment and was entitled to issue an execution for the collection of the same. See Lachenmeyer v. Lachenmeyer, 65 How. Prac. Rep., 422. This case had not been overruled. The cases cited by the appellant are not in point, and are all determination of various points which do not arise in this case. In none of them is the point raised here presented. Neither can I perceive any analogy to the case at bar. For these reasons the order should be affirmed with costs.

Yan Wyck, J., concurs.