87 A.D. 543 | N.Y. App. Div. | 1903
The plaintiff commenced an action against the defendant, based upon an alleged malicious prosecution. On the 15th day of March, 1899, the action- was tried and resulted in the dismissal of the complaint, and judgment thereon was entered in favor of the defendant for the sum of $109.42. The plaintiff appealed from this judgment, and it was affirmed; and for the costs of that appeal the defendant was awarded the sum.of $135.85, for which judgment was entered. Subsequently the defendant issued executions to the sheriff to collect these two judgments, which executions were returned unsatisfied and the judgments remained .wholly unpaid. After the determination of the appeal in the action before mentioned the plaintiff commenced an action to recover damages against the defendant for false imprisonment, based upon the same facts and circumstances as was the prior action in which he had been defeated. The trial of this action resulted in a verdict for the plaintiff for the sum of $50, whereupon judgment was entered in the plaintiff’s favor for the sum of $201.36, made up of the verdict of $50 and $151.36 costs; whereupon the plaintiff issued execution for the collection of that judgment, which sum was collected by the sheriff, and when this application was made, remained in his hands. The defendant thereupon made this application at'Special Term to set off the two judgments against the plaintiff recovered by it against the judgment recovered by the plaintiff against the defendant. Upon that application the plaintiff’s attorneys appeared and claimed a lien on the judgment for their fees, which they claim to be worth the sum of $250, and which were unpaid, and that such lien was paramount to the defendant’s right of set-off. The motion to set-off was denied, and from the order denying that motion the defendant appeals.
As between the plaintiff and the defendant there can be no question but that the defendant would be entitled to this relief. In answer to the defendant’s application, however, the plaintiff’s attorneys filed an affidavit stating that they had received no compensation for their services rendered in either of the actions brought by the plaintiff against the defendant; that the services rendered in the action in which the recovery was had by the plaintiff were reasonably worth the sum of $250, on account of which the plaintiff’s attorneys had received nothing whatsoever; and they claimed that
A number of cases. are cited to show that the costs belong to the attorney, but it does not appear that this precise question has been authoritatively determined. The subject of the compensation of attorneys and counselors at law is regulated by section 66 of the Code of Civil Procedure. That section provides that the compensation of an attorney or counselor for his services is governed by agreement, express or implied. An attorney and counselor at law is thus placed upon a footing with other persons who render services, and his compensation is regulated by an express agreement when one is made, or, in the absence of an express agreement, by an implied agreement which would entitle the attorney to recover the amount that the services rendered by him are reasonably worth. The costs which are awarded in favor of the client in the event of his successful prosecution of the action in which the attorney is engaged are not the measure of the compensation which the attorney is entitled to receive. (Starin v. Mayor, 106 N. Y. 82.) The costs in a civil action are regulated by title 2 of chapter 21 of the Code of Civil Procedure, Section 3251 of the Code provides that “ costs awarded to a party to an action must be at the following rates.” The costs are awarded to the plaintiff, to the defendant, or to the successful party, and not to the attorneys, and all through the Code where costs are spoken of they are the costs that are awarded to the party as indemnity to him for the expenses that he has incurred. There is nothing in the Code to which our attention is called to justify the conclusion that it was the intention, when awarding costs to the party, to treat such costs as between the
Section 66 of the Code also provides how the amount due to an attorney for his services in an action is to be protected and recovered. It is there provided that “ from the commencement of an action or special proceeding, * * * 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 whosoever hands they may come.” Here, where a judgment in the client’s favor is
Applying the principle established in these cases to the case now under consideration, 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. No notice was necessary of the existence of this lien when the judgment was entered, and when the judgment was satisfied by the payment of its amount to the sheriff it attached to the amount paid in the hands of the sheriff, and to-day the amount in the hands of the sheriff is subject to the lien of the plaintiff’s attorneys for the amount due to them from the plaintiff for services rendered in the action in which the judgment was obtained.
This being the result, the question then is, to whom this money should be paid. The plaintiff’s attorneys submitted an affidavit that the services rendered by them to the plaintiff in obtaining that judgment were worth $250, an amount exceeding the amount paid to the sheriff in satisfaction of the judgment. That affidavit is not disputed and I can see no escape from the conclusion that to the extent of the amount actually due the plaintiff’s attorneys the money in the hands of the sheriff is subject to their lien, and 'that they are entitled to be paid that amount before the defendant is entitled to have the money paid to it on account of the judgment which it holds against the plaintiff. The law having imposed this lien upon the money in the hands of the sheriff the court is not justified in discharging that lien or in any way impairing its validity.
It follows that the court below was correct in denying the defendant’s motion, and the order appealed from must be affirmed, with ten dollars costs and disbursements.
Patterson, Hatch and Laughlin, JJ., concurred; Van Brunt, P. J., dissented.
Order affirmed, with ten dollars costs and disbursements.