98 N.Y.S. 347 | N.Y. App. Div. | 1906
The plaintiff recovered a judgment against the defendant Smith in the Supreme Court, Onondaga county, for $884.88, on December 7, 1900. On June 4, 1904, the plaintiff commenced this judgment creditor’s action against Smith and others, alleging certain fraudulent acts on the part of Smith and asking 'for judgment that.
It seems clear that the attorney had a lien which attached to said judgment. It is true that section 66 of the Code of Civil Procedure does say: “ From the commencement of an action or special proceeding, or the service of an answer containing a counterclaim, the attorney who appears for a party has' a lien upon his client’s cause of action, claim or counterclaim, which attaches, to a verdict, report, decision, judgment or final order in his client’s favor, and the proceeds thereof in whosesoever
It seems to me that the attorney had a lien upon this judgment for costs, of which the plaintiff was bound to take notice. It
In Barry v. Third Ave. R. R. Co. (87 App. Div. 543) plaintiff commenced an action for malicious prosecution, which resulted in a dismissal, a judgment for costs of $109.42, and an affirmance on appeal, with a further judgment for defendant for $135.85. Executions were issued thereon and returned unsatisfied. Thereafter plaintiff commenced an action for false imprisonment upon the same facts, recovered a verdict for $50, and entered up judgment, including costs, for $201.36. Execution-was issued and the sheriff collected the amount, bub while still in his hands the defendant made a motion to offset the judgments. Upon that motion plaintiff’s attorneys appeared and claimed a lien on the judgment for their fees, which were unpaid, and that such lien was paramount to defendant’s right of offset. The motion to offset was denied. Mr. Justice Ingraham, in an opinion which exhaustively discussed the question of the relative rights of the attorney and the client to costs as such, holding them in the absence of an agreement to belong to the client, and saying, “ As between the plaintiff and the defendant, there can be no question but that the defendant would be entitled. to this relief,” nevertheless held that “ it is apparent that this lien of the plaintiff’s attorney for the amount due him from his client for the services rendered in the action which resulted in a judgment in his favor, attached to the judgment.and to the proceeds of the judgment in the hands of the sheriff, and was superior to any equities in favor of the defendant to'have the money thus due applied to the payment of its'other judgments against the plaintiff,” and affirmed the order.
So that it follows that the attorney here had a lien upon the judgment paramount to the equities of the plaintiff; that the satisfaction of that judgment by the order of offset destroyed the lien; and that, if the court deemed it right in the Barry case to direct the sheriff to pay the money collected on the judgment to the attorneys in satisfaction, of their lien, so here the court ought not to have destroyed the power to énforce the lien by issuing an execution on the judgment, by the satisfaction thereof.
The respondent makes the point that the matter is not before us, because the appeal is taken in the name of the defendant, and not
Ingraham, McLaughlin, Lahghlin and Houghton, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. Order filed.
This word is “whosoever ” in chapter 61 of the Laws of 1899, which amends this section.— [Rep.