
    Peetsch v. Quinn, No. 3.
    (City Court of New York—General Term,
    November, 1893.)
    The defendant in an action died about ten a. m. the same day that the-General Term .of this court handed down and filed a decision affirming an order denying a motion to vacate the judgment rendered in the-action on appeal from the order of affirmance. Held, that in the absence of proof as to the exact time of defendant’s death, the presumption was that the decision was filed during the lifetime of defendant.
    Also held, that it was unnecessary to revive the action in the name of the-personal representatives of defendant in order to enter the order of affirmance. (Code, § 763.)
    Also held, that under the prayer for such other and further order or relief, or both, as to the court or justice may seem proper, the justice, on denying the motion to vacate the judgment entered, had the right and power-in the interest of justice, and the exercise of his discretion, to direct that said order and judgment be entered nunc pro tune.
    
    Also held, that it appearing that defendant’s attorney had a lien on the judgment for costs, he was entitled as an equitable assignee to enter the-judgment and issue execution thereon.
    Appeal from an order. The opinion states the facts.
    
      Johnston & Johnston, for plaintiff (appellant).
    
      Michael H. Curran, for defendant (respondent).
   McCarthy, J.

This is an appeal from an order denying-a motion to vacate a judgment entered in ¿his action on June 22,1893, and also directing that the order of affirmance entered November 20,1891-, and the judgment entered June 22,1893, be entered mmopro t/u/no as of the date of the,decision of the General Term of this court, to wit, November 16, 1891. The affidavits on this motion as to the time of the death of the defendant are conflicting, and in the absence of positive proof as to the exact time of his death on the day when the decision of the General Term of this court was handed down and filed, we must hold, and the presumption is, that it was filed during the lifetime of the defendant. It was, therefore,, not necessary to revive the action in the name of the personal representatives of the defendant in order to enter the order of affirmance not the judgment of affirmance. See § 763, Code Civ. Proc.

The appellant’s counsel concedes this to be correct if the decision occurred before the defendant’s death. All his authorities refer to cases where the party died before the decision was made. The fact of the time of defendant’s death was found against him by the justice who heard the motion, for such we must assume he did in arriving at his decision. Under the prayer, “ For such other and further order or relief, or both, as to the court or justice may seem proper,” the justice had a right and power, in the interest of justice and the exercise of his sound discretion, to direct that the order and judgment spoken of should be entered nunc pro tunc. See Bergen v. Wyckoff. 1 Civ. Proc. Rep. 1-9; 84 N. Y. 659, 660; Long v. Stafford, 103 id. 274, 281, 282.

The only other question to consider is, did the attorney have the power to enter this order of affirmance and judgment. I think from an examination of the papers he had. It appears un contradicted that Curran- was the attorney for the defendant from the commencement of the action; both at the trial through which, under the rules and practice, a judgment for costs in favor of the defendant, amounting to the sum of nineteen dollars and twelve cents was entered; that the plaintiff appealed to the General Term of this court, which affirmed the judgment, and Curran, the attorney,-thereupon taxed his costs and entered judgment for the 'same, amounting to eighty-nine dollars and forty-five cents; that he, Curran, paid all the disbursements in the case on appeal, and also the disbursements included in the original judgment. He then had an attorney’s lien on these costs, and must be deemed an equitable assignee of the same, and was entitled to enter the judgment, and was entitled to issue an execution for the collection of the same. See Lachenmeyer v. Lachenmeyer, 65 How. Pr. 422. This case has not been overruled. The cases cited by the appellant are not in point, and are all determinations of various points which do not arise in this case. In none of them is the point raised here presented. Neither can I perceive any analogy to the case at bar.

For these reasons the order should be affirmed, with costs.

Van Wyck, J., concurs.

Order affirmed, with costs.  