Tunstall v. Winton , 38 N.Y. Sup. Ct. 219 ( 1883 )

DANIELS, J.:

The costs directed to be set off were recovered by a decision of the Court of Appeals, .reversing an order denying defendant’s motion for a stay on account of tbe failure to pay the costs of another appeal resulting in an order vacating an order of arrest. The costs set off by the order now appealed from amount to the sum of $131.67. They were the costs of a successful appeal from an order, and without any assignment to the defendant’s attorney, legally belonged to him. (Marshall v. Meech, 51 N. Y., 140, 143.) It has been questioned whether even the lien of the attorney is not superior to the right of set off by way of motion (Davidson v. Alfaro, 16 Hun, 353), although it may not be maintainable against an action. (Fermenich v. Bovee, 1 Hun, 532.) But it is not necessary to consider -that point; for, as the demand was wholly for costs, it •could not lawfully be set off on the plaintiff’s motion. Section 779 of the Gode, providing for the set off of motion or interlocutory •costs, does not sanction the order; for that was designed only to provide for the collection or set off of such costs, by the party entitled to receive them. The remedies provided were wholly for his benefit. If he could not collect such costs, nor tax them as a part of the final costs, then he might secure their satisfaction by way of set off; but he has not insisted upon that remedy, and it was to aid him that this provision was made. Certainly it has provided no authority by which the costs belonging to the attorney •can be absorbed by a debt owing from his client. That would be taking the demand due to one person to pay a demand owing by a different person, which would clearly be improper. And that is what the order has done from which the appeal was taken. If, as it was held in Marshall v. Meech, actual payment to the client will not defeat the right of the attorney to the costs, it seems to follow that he cannot be deprived of the right by a set off directed by an •order made on motion.

The order should be reversed and the motion denied.