Wilkins v. Batterman, 4 Barb. 47

By the Court, Paige, J.

An attorney has a lien on a judgment recovered by him for his costs. He is equitably entitled to the costs, as a compensation for bis labor and expense of prosecuting or defending the suit. He is regarded as an assignee of the judgment, to the extent of the costs included therein. (1 Paige, 626. 15 John. 406.) It has been repeatedly held

that if a defendant pay to the plaintiff the costs of the suit, after notice from the attorney of the plaintiff not to do so, he pays the costs in his own wrong. (Pinder v. Morris, 3 Caines, 165. 15 John. 406.) If the attorney is to be regarded as an assignee of the judgment to the extent of his costs, I cannot see why he should not be entitled to all the rights of an assignee. In Martin v. Hawkes, (15 John. 405,) it was decided that the attorney stood in the situation of an assignee of the judgment, to the extent of his costs; and that he also stood in the same equity that he would have done, had the judgment been assigned to him. The only question in this case is, whether actual notice from the attorneys, to the sheriff, and t.o Baker, that the judgment belonged to them, was necessary to protect their lien from any acts of Baker or Wilkins, calculated to defeat it. If the attorneys of Wilkins stood in the situation of assignees, they ought to be entitled to all the rights incident to that character. Courts of law, as well as of equity, take notice of, and protect, the rights of assignees, against all persons having implied, as well as against those having express notice of the assignment. (Martin v. Hawkes, supra. 12 John. 343. 19 Id. 96, 97.) Actual notice is not necessary to be given to protect the assignee. If a party acts in the face of facts and circumstances which are sufficient to put him upon inquiry, he acts contrary to good faith, and at his peril. (12 John. 345. Per Thompson, J.) In the present case, it appears on the face of the ca. sa. that the judgment was for costs alone. This was notice to the sheriff of that fact. Wilkins and Baker, the parties to the suit, must have had full knowledge of this fact. The parties, as well as the sheriff, must have known that the judgment, being for costs alone, equitably belonged to the attorneys of Wilkins. If this be so, then Baker and Wilkins acted not only in the face of facts and circumstances sufficient to put them on inquiry as to the interest of the attorneys in the judgment, but in the face of the very fact itself, that the judgment belonged to them. If Baker had not only implied notice, but actual knowledge, that the judgment equitably belonged to the attorneys of Wilkins, his application to Wilkins for a settlement of the judgment, and the permission of Wilkins that he might leave the limits, were a fraud on the attorneys of Wilkins. For if a creditor gives his debtor who is in execution, permission to go at large beyond the jail liberties, the judgment is discharged, and the plaintiff can neither issue a new execution nor maintain an action for an escape, against the sheriff. (7 Cowen, 276.) But if we give the attorneys of Wilkins the full benefit of the character of assignees of the judgment, with knowledge of their rights on the part of Wilkins and Baker, we can protect their lien by regarding the permission of Wilkins given to Baker as unauthorized' and nugatory. If Wilkins had no authority to permit Baker to go beyond the liberties, or if this permission was a fraud on the attorneys of Wilkins, the leaving the liberties by the latter was an escape, and an action for the same can be maintained against, the sheriff.

The case of Ten Broeck v. De Witt, (10 Wend. 617,) shows that an actual notice from the attorney to the defendant, not to pay the costs to the plaintiff, is not necessary to protect the attorney. In that case, the defendant paid the damages and costs to the plaintiff, after being advised by a counsellor of the supreme court (who, it did not appear, was in any way connected with the cause,) that the plaintiff was not authorized to receive the costs. This was the only notice to the defendant shown in the case. And the court held, that the information received by the defendant, was equivalent to a notice from the attorney not to pay the costs to the plaintiff In Bradt v. Koon, (4 Cow-en, 416,) where the recovery against Koon was for costs, the court refused, on the application of Koon, to set off a judgment against Bradt, purchased by Koon after he knew that the judgment recovered against him by Bradt belonged to Bradt’s attorney. Here the attorney had given no actual notice to Koon not to pay the judgment for costs to Bradt, But the court regarded the attorney as an assignee of the judgment for costs, and protected his rights, in like manner as they would have done, if the judgment had been assigned to him; and they denied the application for a set-off, because Koon purchased the judgment against Bradt after he had obtained knowledge that the judgment for costs against himself, belonged to Bradt’s attorney. The question here before the court, is not whether the attorney’s Hen for his costs takes preference of the right of the defendant to set off a claim arising in the course of the same suit, or a judgment in a different suit; (15 John. 407. 1 Paige, 622. Nicol v. Nicol, 16 Wend. 446;) but it is a question whether the parties to a suit, after notice or knowledge of the attorney’s lien for his costs, shall be permitted by either fraud or collusion to defeat such lien.

The report of the referees must be set aside; costs to abide the event of the suit.

Case Details

Case Name: Wilkins v. Batterman

Court Name: New York Supreme Court

Date Published: Jul 3, 1848

Citation: 4 Barb. 47

Court Abbreviation: N.Y. Sup. Ct.