Adams v. Niagara Cycle Fittings Co. ( 1902 )

KENEFICK, J.

A judgment for costs only belongs to the attorney for the successful party. People v. Common Council of City of Buffalo, 7 Misc. Rep. 386, 28 N. Y. Supp. 158; Guliano v. Whitenack, 9 Misc. Rep. 562, 30 N. Y. Supp. 415; In re Bailey, 31 Finn, 608. Such a judgment may be counterclaimed in an action against the attorney. Adams v. Stillman, 4 Misc. Rep. 259, 23 N. Y. Supp. 810. The attorney’s claim thereto is superior to the right of the adverse party to set off claims against the successful party. Husted v. Thomson, 26 Misc. Rep. 548, 57 N. Y. Supp. 558; Delaney v. Miller, 84 Hun, 244, 32 N. Y. Supp. 505. Such a judgment cannot be set off against the general costs awarded to the other party in the same action. Tunstall v. Winton, 31 Hun, 219, affirmed in 96 N. Y. 660. Nor can it be set off against a judgment recovered by the other party. Gibbs v. Prindle, 11 App. Div. 470, 42 N. Y. Supp. 329. The judgment itself Jurnishes notice of the attorney’s lien in case it is for costs only. Marshall v. Meech, 51 N. Y. 140, 10 Am. Rep. 572. An attorney for a defendant is equally protected with the attorney for a plaintiff after judgment. Bevins v. Albro, 86 Hun, 590, 33 N. Y. Supp. 1079. “Section 66 [of the Code] was not intended as a limitation upon liens of their attorneys for their costs, but as an extension. It was intended as additional security to them. * * * The only change in the law effected by the section is to give attorneys liens upon causes of action before they are perfected into judgments.” Page 592, 86 Hun, and page 1080, 33 N. Y. Supp.

Motion granted.