Majority
p. 665Edward Butcher, Jr, App’lt, v. John L. Henning et al., Resp’ts. (Supreme Court, General Term, Third Department, Filed December 3, 1895.)
Headnote
Appeal—Restitution.The restitution of money, paid under a judgment, which is afterwards reversed, will not be ordered, where the money was paid over to the successful party's attorney in satisfaction of a debt due from his client.
Appeal from a judgment in favor of defendants.
This action arose out of a previous suit brought by Bullard & Howe, plaintiff’s-assignors, against James H. Kenyon and Ellen M. Kenyon, in which the Kenyons recovered judgment, which was affirmed on appeal to the general term, and a motion for leave to go to the court of appeals was denied. Thereafter Bullard & Howe voluntarily paid" to defendants herein, who were attorneys of the plaintiff in that suit, the costs sought to be recovered in this action, and defendants, acting on the advice of their clients, applied the sum so received in payment of debts due by their clients for printing, and also as a payment on account. Subsequently a motion for reargument was granted in the suit against defendants' clients, and upon a rehearing the judgment was reversed, the case retried, and judgment rendered against the said Kenyons.
B. G. Bullard {B. B. Bullard, of counsel), for app’lt; John J. Healey, Jr. (William H. McCall, of counsel), for resp’ts.
In Langley v. Warner, 3 U. Y. 327, it was held by the court of appeals that where a judgment had been collected, and the money paid to the attorney who prosecuted - the suit, an
p. 666
action will not lie against the attorney to recover back the money after a reversal of the judgment, although by agreement between him and his client, he retained the money in payment of a debt from the latter to him. The facts in the case cited were quite similar to those appearing in the case under consideration. We are not aware that the doctrine established in Langley v. Warner, supra, has ever been doubted or overruled. Grauer v. Grauer, 20 N. Y. Supp. 854 ; Wright v. Nostrand, 53 N. Y. Supr. Ct. 381 -386; Simpson v. Hornbeck, 3 Lans. 53 -55; Forstman v. Schultinq, 108 N. Y. 110 -113; 13 St. Rep. 483 .
The judgment should be affirmed, with costs.
Cases cited
- Simpson v. Hornbeck 3 Lans. 53 p. 666
- Forstman v. Schulting 108 N. Y. 110 p. 666