Hyperlawhypertext legal database Newberg v. Schwab 49 N.Y. Super. Ct. 232

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Newberg v. Schwab

49 N.Y. Super. Ct. 232 17 Jones & S. 232 Court N.Y. Super. Ct. Decision date 1883-05-07 English

Decision Majority — By the Court.-—O’Gorman, J. · Concurring — Sedgwick, Ch. J.—[Concurring.]

Contents

Majority

p. 232
MARCUS NEWBERG, Respondent, v. JOSEPH SCHWAB, et al., Appellants.

Headnote

Attorney—right to sue on undertaking assigned to him. with judgment.
An attorney who has recovered a judgment for his claim upon which he has has a lien for professional services, may take an assignment thereof, together with the undertaldng given in the action, in payment of said services, and may bring an an action on such an undertaking in his own name.
Before Sedgwick, Ch. J., O’Gorman and Ingraham, JJ.
Decided May 7, 1883.
p. 233
Appeal from a judgment in favor of plaintiff, entered upon the verdict of a jury by direction of the court for the sum of $603.02.
The facts are as follows : One Lewis Beckel sued George M. Mittnacht to recover the possession of a certain safe, keys, &c., or their value; in that action the defendant was arrested for eloigning the property, and gave an undertaking upon arrest, his bail being the defendants in this action. Said action was tried and resulted in a judgment for the plaintiff Lewis Beckel; execution was duly issued therein and returned unsatisfied. The said judgment was thereafter assigned to this plaintiff, together with the undertaking upon arrest above referred to, and this action upon the undertaking was then brought.
The plaintiff was the attorney for the plaintiff in the case of Beckel v. Mittnacht, and took the assignment to protect a lien on the judgment in that action, in which the undertaking in suit was given and in payment for services rendered by him therein.
Christopher Fine, for appellants.
Goff & Pollock, for respondent.

—This case was tried before Judge Freedman and a jury.

The chief question discussed was whether an attorney, having obtained a judgment in favor of his client, who was plaintiff in an action of replevin, upon which judgment he had a lien for his professional services, can, on the assignment of such judgment to him, succeed in an action in his own name against the sureties of the defendants in such action of replevin.

There is no legal objection to an attorney taking an assignment of a judgment in favor of his client in payment of any debt due to him by said client; and becoming thus the lawful owner of the judgment (Coughlin v. N. Y. C. & H. R. R. R., 71 N. Y. 443 ).

There is no reason why he should not be entitled to put in force all the lawful means which the assignor possessed to make the judgment effectual.

Concurrence

p. 234
The right to compel the sureties to respond for the default of their principals, the defendants in that replevin action, was one, and the most effectual of these means, and went with the assignment and the legal ownership of the judgment.

The judgment should be affirmed with costs.

—On the whole case, 1 am of opinion that judgment should be affirmed, with costs.

Ingraham, J., concurred.

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