Majority
p. 200Adam P. Dienst et al., Pl’ffs, v. William H. McCaffrey et al., Def’ts. (New York Common Pleas, Special Term. Filed February, 1895.)
Headnote
Attorney and client—Lien.An attorney’s lien on a judgment for his costs and compensation, though without notice, prevails over the lien of the creditor in a supplementary proceeding against the party recovering the judgment.
Motion to vacate an order made in supplementary proceedings, requiring payment to plaintiffs of the amount of a judgment recovered by defendants against a third party.
James Kearney, for the motion ; J. Homer Hildreth, opposed.
An attorney's lien on a judgment for his costs and compensation, though without notice, prevails over the lien of-the creditor in a supplementary proceeding against the party recovering the judgment. Upon the examination of a third party in a supplementary proceeding, it was discovered that the execution debtor held a judgment against him, and thereupon an order was entered requiring him to pay the judgment in satisfaction of the execution creditor. The attorney who procured the judgment now intervenes, with a motion to vacate that order and to protect his lien. The judgment against the third party is, of course, available only to the extent of the execution debtor’s interest in
p. 201
it. The attorney has a lien on the judgment for the amount of his costs and compensation. Washburn v. Mott, 34 St. Rep. 145 ; Guliano v. Whitenack, 62 St. Rep. 84 ; Lee v. Vacuum Oil Co., 126 N. Y. 579 ; 38 St. Rep. 662 ; Palmer v. Van Orden, 64 How. Pr. 79 . Notice of the lien is not necessary to its efficacy. Keeler v. Keeler, 51 Hun, 505 ; 21 St. Rep. 666 ; Guliano v. Whitenack, supra; Washburn v. Mott, supra. The motion is granted, with costs; but, finding in the papers no proof of the amount of the attorney’s compensation, it must be ascertained upon a reference. 1 Bliss’ Code, p. 77.
Cases cited
- Lee v. Vacuum Oil Co. 126 N. Y. 579 p. 201
- Albert Palmer Co. v. Van Orden 64 How. Pr. 79 p. 201