11 Daly 278 | New York Court of Common Pleas | 1882
If this were an application to set off the judgment in one action against the judgment in another, we should feel obliged to apply the law as laid down in Ely v. Cooke (28 N. Y. 372), Perry v. Chester (53 N. Y. 240), and Zogbaum v. Parker (66 Barb. 341), and hold that where an attorney had purchased one of the judgments, and paid for it in services rendered in good faith, he should be treated like any other bona fide purchaser for value, and that he should not be deprived of his judgment because his assignor was indebted upon the other judgment to the person who applied for the offset.
This, however, is not such a case. The judgment here is in favor of the plaintiffs, but certain costs were allowed to the defendant upon a motion made in the action. These costs are claimed by the defendant’s attorney, and it is insisted by him that the court cannot deduct them from the judgment because the defendant promised him, at the beginning of the action, that he should have whatever costs were recovered against the plaintiff. Interlocutory costs have frequently been offset (Graham’s Practice, 349). It is eminently proper that the power to order an offset should be lodged with the court, otherwise a defendant, who may not care if his proceedings are stayed, may collect costs of the plaintiff without being compellable to pay such costs as may be awarded against himself. On the other hand it may happen that a defendant, unjustly sued, succeeds in the action, though interlocutory costs may have been awarded to the plaintiff, and the only chance he may have of getting any part of the final costs adjudged against the
I think the order appealed from should be affirmed, with costs and disbursements.
J. F. Daly and Beach, JJ., concurred.
Order affirmed, with costs.