
    William M. Howitt, App’lt, v. Isaiah M. Merrill, Impleaded, etc., Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed June 25,1888.)
    
    Attorney’s lien—Satisfaction of judgment—When will not be set ASIDE.
    On the 24th of May, 1881, plaintiff recovered a judgment for damages and costs against defendants, which was satisfied on April 14, 1882. The attorney for plaintiff as soon as he was informed of the settlement had the satisfaction vacated in order that his lien for costs and disbursements might be restored, The order vacating the satisfaction was revoked for an improper service of papers February 13, 1883. In November, 1887, the attorney made another application to set aside the satisfaction Both plaintiff and defendant swore that at the time of the satisfaction, plaintiff told defendant that he had paid his attorney all that was due him. Held, that upon the whole case in view of the time which had expired since the satisfaction was given, it should not be set aside.
    Appeal from order filed in the office of the clerk of Rock-land county, denying motion to vacate the satisfaction of judgment in this action to the extent of plaintiff’s attorney’s costs and disbursements and for leave to issue execution for the amount, etc.
    
      Calvin D. Van Name, for app’lt; Thomas W. Fitzgeraldt for resp’t.
   Barnard, P. J.

It is difficult to say what are the facts in this case upon the real point of dispute. It is certain that the plaintiff recovered a judgment of $337.86, damages and costs against the defendant, on the 24th of May, 1881. That Calvin D. Van Name was the plaintiff’s attorney. That on the 14th of April, 1882, the plaintiff settled with Isaiah Merrill, one of the defendants, for one-half of the judgment, and gave him a satisfaction from the judgment as to this defendant. That Van Name was not informed of the settlement until the 6th of January, 18§3. That he at once move to vacate the satisfaction which was so ordered, upon improper service of papers, and the order revoked on February 13, 1883, and the matter has so remained until this application was made in November, 1887. The length of time which has elapsed since the revocation of the order is a very strong circumstance against now opening the subject. The worst circumstance is, however, one which affects the question of the attorney’s having a claim at all. The moving papers contain an affidavit made by plaintiff that at the time of the settlement, he told the defendant that he had paid Van Name all that was due him.” Van Name swears that nothing was paid. The defendant makes oath that the plaintiff told him that all claims in respect to this litigation had been settled with Van Name, for a note of $100, and some costs. There is also other proof of statements of the plaintiff to the same effect. Upon the whole case, in view of the time which has expired since the satisfaction was given, the order should be affirmed with costs.

Pratt and Dykman, JJ., concur.  