Davis v. Bowe

Headnote

Costs—Lien of attorney thereon—Not Ms property—Right of attorney of record to discharge prisoner held on limits under judgment for costs— False imprisonment.

Appeal from judgment in favor of plaintiff, and from an order denying a motion for a new trial.

Action to recover damages for a false arrest. The facts were as follows : The plaintiff herein was arrested on a body execution in an action in the then Marine Court, September 4, 1882. He gave a bond for the jail liberties and was allowed on the limits. The judgment on which the execution was founded was for costs, and the execution upon which the arrest was made so stated. On December 13, 1882, the Marine Court judgment was satisfied by the execution of a satisfaction piece signed and acknowledged by T. C. McKennie, the attorney of record. On the same day the judgment was satisfied of record in the Marine Court and County Clerk’s office.

McKennie signed a paper requesting the sheriff to discharge the prisoner, Abraham Davis, from custody, and Davis’ attorney caused this notice to be served at the sheriff’s office. On a conflict of evidence as to whether this notice was left with the sheriff, the jury found for plaintiff. Some time in the latter part of December, 1882, and after the paper had been served, the sheriff’s attorney and the under sheriff were informed' in the sheriff’s office that the Marine Court judgment had been paid and satisfied of record; but no certificate of satisfaction was produced at the sheriff’s office. At this time the paper was in the possession of the sheriff’s office. On Saturday, January 6, 1883, at half-past ten at night, two deputy sheriffs arrested Davis, brought him to the door of Ludlow street jail, and then allowed him to go free on payment of ten dollars. The right to arrest was based on a remand order in the old Marine Court action, Sheriff Bowe’s term of office being about to expire. The court charged the jury that the notice signed by McKennie was .sufficient to entitle Davis to a discharge, and defendant excepted. The jury found for plaintiff in the sum of six hundred dollars.

There was no evidence in the case as to the value of the attorney’s services in the action in which the body execution was issued.

The Court at General Term held :—“ The costs of the successful party in all actions do not belong legally to the attorney. They legally belong to the party. Wheaton v. Newcomhe, 48 Super. Ct. 215. But the attorney has a lien on them for the amount of his compensation, which may or may not exceed the amount of the costs as taxed. It is for this reason that the attorney is master of a judgment for costs and of the remedies given for its collection......The case was correctly disposed of, both at the trial and on the motion for a new trial.”