Place v. Hayward , 1 How. Pr. (n.s.) 59 ( 1885 )

O’Gob.man, J.

At the special term of this court an order was made on April 16, 1884, on motion of counsel for defendant, “that an allowance of $500 is granted to the defendant against the plaintiff, as executor, together with the costs of this action, costs and allowance not to be paid by plaintiff personally.”

On defendant’s motion this order was reconsidered and reaffirmed, and this decision was sustained by the general term.

The defendant appealed to the court of appeals, who, on November 2, 1885, dismissed the defendant’s appeal, with. $116.02 costs to the plaintiff.

Defendant now moves for leave to amend the judgment in his favor for said allowance and costs so that the amount thereof be reduced by offsetting against it pro tanto the $116.02 costs of appeal allowed to the plaintiff.

The plaintiff’s counsel, on the other hand, contends that these costs of appeal are the properly of the attorney for the plaintiff, and are not subject to any offset in favor of the plaintiff himself. Tn support of this proposition he cites (Tunstall agt. Winton, 31 Hun, 220 [December, 1883, affirmed by Court of Appeals, 92 N. Y., 646]; Marshall agt. Meech, 51 N. Y., 143; Naylor agt. Lane, 50 Super. Ct. R., 97; Re Knapp, 85 N. Y., 298; Ward agt. Craig, 87 N. Y., 559; Lachemeyer agt. Lachemeyer, 17 Week. Dig., 310).

The defendant relies on (Garner agt. Gladwin, 12 Week. Dig., 9 [Supreme Court, General Term, March, 1881]; Hoyt agt. Godfrey, 5 Civ. Pro. R., 118 [Common Pleas Court, General Term, November, 1882]; Catlin agt. Adirondack Co., 22 Hun, 496).

I have examined these deci-'ions and in my opinion the weight •of authority favors the conclusion that the attorney has a hen on motion costs ordered in favor of his client, and as equitable assignee thereof, which hen attaches the instant the costs are •due. That the costs in this case are motion costs. That they

• cannot be offset against any costs in the action due by the plaintiff to the defendant That the plaintiff cannot pay the defend-

• ant out of money which legally belongs to the plaintiff’s attorney. And that these costs are collectible from the defendant under section 779 of the Code of Civil Procedure.

The defendant’s motion is, therefore, denied, with ten dollars ■costs.