Hover v. Heath — 10 N.Y. Sup. Ct. 283

Majority

p. 283

PETER HOVER, Respondent, v. S. PULVER HEATH, Appellant.

Headnote

Attorney—compensation —when entitled to—Interest.

This action was brought to recover moneys collected by the defendant, as the attorney for the plaintiff. The referee charged the defendant with the amount received by him, with interest thereon from the time of its receipt, and, after deducting therefrom the amount allowed to him for costs and counsel fees, directed judgment to be entered for the balance. Held, that this was error. The defendant was entitled to receive the costs and counsel fees as soon as the moneys were collected, and it was error to charge him with interest thereon.

Appeal from a judgment in favor of the plaintiff, entered on the report of a referee. This action was brought to recover moneys, in the hands, of the defendant, collected by him as the attorney for the plaintiff. In 1864, the plaintiff retained the defendant, who is an attorney and counselor at law, to commence an action and collect a claim for damages against the commissioners of highways of the town of Florida. That action was tried October 1, 1864, when the plaintiff recovered a verdict for $200, and judgment was accordingly entered for $200 damages and $155.87 costs and disbursements. On appeal from that judgment, it was affirmed in the General Term, and July 31, 1865, judgment entered on the appeal for $95.88 costs and disbursements. On a further appeal, that judgment was also affirmed in the Court of Appeals, and a third judgment entered on such affirmance, February 1, 1871, for $215.50 costs and disbursements. March 4, 1871, the amount of these judgments, principal and interest, was collected and received by the defendant, as such attorney of the plaintiff, amounting to the sum of $861.91. April 1, 1873, the defendant paid, for counsel fees in the action, the sum of $130, and claimed to retain the balance in his hands for his own services and disbursements. The referee charged the defendant with the entire amount received, $861.91, with interest from March 4, 1871, and credited him with the following items : $130, and interest from April 1, 1873; $380.31, for services as attorney; and $300 for services as counsel, and ordered judgment in favor of the plaintiff for the balance, $231.43, besides costs. The defendant excepted to the several findings of the referee, of the amounts allowed, principal

p. 284

and interest, to the respective parties, and to the amount found due to the plaintiff.

J. I Snell, for the appellant.

Mitchell ds Glute, for the respondent.

It is found as a fact that the money was collected on the judgments in the former suit, by the defendant, as attorney, on the 4th day of March, 1871. His services were then completed, and his right to compensation perfect from that period.^[1] He had a lien for the value of his services upon the moneys which he collected on the judgments,^[2] And yet the referee has charged him with the interest on that portion of the money which. he was entitled to retain for the services he had performed, from, the time he collected it to the date of his report. This cannot be maintained. When the moneys were collected, his employment as attorney terminated, and his claim for services became due, and he was entitled to retain the value thereof out of the moneys in his hands. The defendant is, therefore, entitled to a deduction of the interest on $680.31, the value of his services and disbursements, from March 4, 1871, to , April 25, 1874, the date of the report, amounting to $149.48. He was properly charged with interest on the balance in his hands from the time of its receipt;^[3] and he was also properly disallowed interest on the taxable costs or disbursements until his employment was closed.^[4] The exceptions to the report were, probably, not sufficiently specific to have presented these questions for review in the Court of Appeals;^[5] but the right to review is not so limited in the General Term. The judgment must be modified by striking out the sum of $149.48, and, as thus modified, the judgment must be affirmed, without costs of the appeal to either party.

Present—Bookes, P. J., Countryman and Landon, JJ.

Judgment modified, and as modified affirmed, without costs to either party.

* Adams v. Fort Plain Bank, 36 N. Y., 255 .

† † Rooney v. Second Avenue Railroad Co., 18 N. Y., 368 .

‡ ‡ Greenly v. Hopkins, 10 Wend., 97 .

§ § Mygatt v. Wilcox, 1 Lansing, 56.

|| || McMahon v. N. Y. & Erie Railroad Co., 20 N. Y., 463 , 470.