
    (73 Misc. Rep. 33.)
    WESLEY v. WOOD.
    (Oneida County Court.
    July, 1911.)
    Attorney and Client (§ 184) — Compensation of Attorney — Lien — Priority over Judgment.
    An attorney’s lien on a judgment in his client’s favor for costs is superior to the right of the adverse party to offset the judgment against a previous judgment against the client.
    [Ed. Note. — For other cases, see Attorney and Client, Cent. Dig. § 388; Dec. Dig. § 184.]
    Action by Harry C. Wesley, as committee of S. Edward Dodge, an incompetent person, against John H. Wood. Motion for leave to issue execution on judgment for defendant for costs. Motion granted.
    See, also, 72 Misc. Rep. 258, 131 N. Y. Supp. 109.
    McMahon & Larkin, for plaintiff.
    D. Francis Searle, for defendant.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
   HAZARD, J.

This action was in replevin, and upon trial by jury a verdict was rendered for the defendant, upon which judgment for costs has been entered against the plaintiff, amounting to $82.25. This motion was made for leave to issue an execution upon that judgment, or for such other relief as to the court might seem just. Plaintiff, in opposition, sets up the fact that he has a judgment against this defendant, obtained in another action, for about $500, and seeks to have that judgment set off pro tanto against the recovery of the defendant in this action.

The situation is not dissimilar to that which existed in the case of Hayes v. Carr, 44 Hun, 372; and it was there held that it would be inequitable to permit the judgment for costs to be collected, in view of a large outstanding indebtedness existing in favor of the other side. Upon an examination of numerous cases, I find that, since the decision in the case of Hayes v. Carr, there has been a growing tendency on the part of the courts to protect the rights of attorneys to their lien upon recoveries obtained by them. Many more recent cases hold that the lien of attorneys for services and disbursements is superior to the right to set off judgments. Kretsch v. Denofrio, 137 App. Div. 619, 122 N. Y. Supp. 242; Smith v. Cayuga Lake Cement Co., 107 App. Div. 524, 95 N. Y. Supp. 236; Webb v. Parker, 130 App. Div. 92, 114 N. Y. Supp. 489; Agricultural Insurance Co. v. Smith, 112 App. Div. 840, 98 N. Y. Supp. 347.

In the case at bar plaintiff has brought an action, and has failed in substantiating his cause of action. Defendant, however, was compelled to defend and to employ counsel for that purpose. The moving papers show that defendant is financially irresponsible; and, presumably, if his attorney is to receive any compensation for successfully defending this action, it must be through receiving the taxable costs. While costs are theoretically awarded to the party, in actual practice it is generally understood that they belong to the attorney, as his compensation for obtaining the judgment. Marshall v. Meech, 51 N. Y. 140, 10 Am. Rep. 572.

While the court has undoubtedly the right to adjust the equities between these parties, it seems to me that it would be inequitable to compel defendant’s attorney to defend this action, which he has done successfully, and force him to look to an insolvent client for his pay. While it is true that the attorney did not have to accept the defense of this action, yet it is conceivable that he might have gone into it with the firm belief that he could succeed, and could be compensated by receiving the costs which would follow a victory for the defendant.

Plaintiff is in funds, and issuing an execution against him would entail needless expense. An order may be prepared, providing for the payment by plaintiff, out of the funds in his hands, of the judgment herein, with $10 costs of motion.

Ordered accordingly.  