
    Thomas A. Rickert, as President, Etc., Respondent, v. Simon O. Pollock et al., Appellants.
    (Supreme Court, Appellate Term,
    January, 1905
    Appeal — Ruling on motion to strike out testimony — Presumption—■ Costs — Order modified — Attorney cannot be required to restore.
    Where the record on appeal does not disclose a ruling upon a motion to strike out testimony received over objection and exception, the appellate court must assume that it was granted.
    
    Where before an order granting costs is modified as to amount,, the attorney receives and pays them out for account of his client, or appropriates them to pay himself for disbursements made for his client, the attorney cannot be required to restore them-, but the action should be against the client.
    Appeal by the defendants from a judgment of the Municipal Court of the city of Hew York, fourth district, borough of Manhattan, in favor of the plaintiff for the sum of $114 and costs.
    Pollock & Abrahams, for appellants.
    Steuer & Hoffman, for respondent.
    
      
       See Hillman v. De Rosa, ante, page 261.
    
   Davis, J.

The defendants are attorneys-at-law, and as such represented certain parties plaintiff in two actions brought against the plaintiff in this action in the City Court, to wit, the case of Klein v. Bernard Larger, as President of the United Garment Workers of America, and the case of Goldman v. Bernard Larger, as President of the United Garment Workers of America. In these two actions judgment was rendered in favor of the plaintiffs therein on or about December 10, 1903, and appeals to the Appellate Term, were taken by the defendant. These two appeals were subsequently dismissed on motion of the respondent therein and an order was entered by the terms of which the respondent was awarded the costs of appeal in each action to be taxed. The costs were thereupon taxed at one hundred and twentvnine dollars, and thereafter on or about May 18, 1904, the defendants paid to the plaintiff’s attorneys ninety-two (follar s and ninety cents. According to a receipt marked in evidence and signed by Pollock & Abrahams, the respondent’s attorneys in those actions, they received this ninety-two dollars and ninety cents from the appellants therein as costs taxed in both of the actions referred to. After the receipt of this money other counsel were substituted for the appellants in the two actions, and they obtained an order modifying the former order dismissing the appeal and providing that the respondent should have only ten dollars costs in each case instead of the costs of an appeal to be taxed. This order was entered in place of the former order. Thereupon this action was brought to compel the attorneys who had received the costs before the modification of the orders dismissing the appeals to return them to the plaintiff herein, on the ground that they were illegally retained.

To prove the payment of the costs sought to be recovered, the plaintiff herein called Henry Waxman, who testified that he was connected with the plaintiff, and that he gave one Jacobowitz one hundred and fourteen dollars to pay the costs to the defendants, Pollock & Abrahams. Plaintiff next called Paul M. Abrahams, one of the defendants. He was asked to explain the receipt for ninety-two dollars and ninety cents referred to above. He said that only eighty dollars of it represented the costs and that he had received the money from Jacobowitz, the defendants’ attorney in the two actions. He was then shown another receipt (not marked in evidence) for twenty-one dollars and fifty cents, concerning which he said that it did not represent the costs, but a payment on account of other matters.

There was no other evidence as to the amount of costs received by the defendant. In view of this evidence and of the fact that the plaintiff evoked the explanation of the receipt for ninety-two dollars and ninety cents, it follows that the plaintiff’s proof showed that not more than eighty dollars was received by the defendants as costs. The plaintiff also brought out from this defendant the fact that he had paid over to his client forty dollars of these costs and had expended as disbursements on account of his client at least forty-seven dollars more. After eliciting this evidence from his own witness the plaintiff moved to strike it out on the ground of incompetency. The record does not disclose the court’s ruling upon this motion. Presumably, the ruling was in favor of the plaintiff, he being the successful party. See Herzfeld v. Reinach, 44 App. Div. 326; Adams v. Elwood, 176 N. Y. 106. If so it was error to strike out this testimony, inasmuch as it consisted of direct and responsive answers to the plaintiff’s own questions. Ro fraud was alleged or proved against the defendants.

On this evidence the court found that the defendants had been paid $114 as costs, and rendered judgment for that amount in favor of the plaintiff.

In order to recover against the defendants the plaintiff must show not only that costs in excess of legal costs were received by the attorney, but also that he had them in his possession after the making of the order which reduced the amount of the costs.

If, before the making of this latter order, the attorney paid out the costs for account of his client or appropriated them to pay himself for disbursements made by himself foi his client, he cannot be required to restore them. The action" should be against the client and not against the attorney. Armstrong v. Cummings, 17 Wkly. Dig. 165, 166. Of course if the attorney obtained payment of the costs by deceit he could be required to restore them irrespective of how he had disposed of them, but no deceit has been shown here.

The plaintiff proved nothing more than that defendants had received the costs to the extent of eighty dollars only. There was no proof that they obtained them by fraud or deceit and no proof that they retained possession of them after their receipt, except so far as to apply about forty-seven dollars to pay their client’s debt to them.

'The defendants put in no evidence, but at the close of plaintiff’s case moved for judgment, which motion was later denied.

We think the plaintiff failed to make out a cause of action.

MacLean, J., concurs in the result.

Scott, J. (concurring).

I think that the payment of the costs by the former attorney for the respondent was a voluntary payment. I concur in a reversal of the judgment.

Judgment reversed and new trial granted, with costs to appellants to abide event.  