
    HENRY NAYLOR, Respondent, v. BARENT H. LANE, Appellant.
    
      Attorney—lien .of—cannot be defeated by set-off.
    
    A defendant has a right to assign to his attorney the prospective costs against his adversary in consideration of the services to be rendered by the attorney in earning such costs, and where such transfer has been made, in case the defense is successful, the claim of the attorney to a judgment for the costs cannot be defeated, by setting off against the same a prior judgment in favor of the plaintiff against the defendant.
    
      
      Decided February 4, 1884.
    Before Sedgwick, Ch. J., and O’Gorman, J.
    
      D. A. Hulett, for appellant.
    
      Charles E. Crowell, for respondent.
   By the Court.—O’Gorman, J.

This action was tried, and a verdict rendered for the defendant, and judgment duly entered thereon for the sum of $180.63, the same being for costs and disbursements, on June 19, 1883.

On the same day, D. A. Hulett, the attorney for the defendant, Lane, served on the attorney of the plaintiff, notice of entry of said judgment, together with a notice of his own lien on said judgment to the full extent thereof for his taxed costs, &c. On the same day, and before entry of said judgment in favor of the defendant Lane, a judgment was entered in this court, in another action in favor of the plaintiff herein, for $331.64 against said Lane and James A. Biel on a joint and several indebtedness to said plaintiff. Nothing has been paid on either of these judgments. A motion was made at special term on the part of said Naylor, the plaintiff in both of said actions, that the judgment obtained by the said defendant, Lane, against said Naylor, in the first mentioned action, should be set off against the judgment obtained by the said Naylor in the action secondly above mentioned, by reducing the amount of the said judgment against Lane, and that the judgment in favor of said Lane, and against the plaintiff, should be canceled and satisfied of record. In opposition to this motion, an affidavit of said Hulett, attorney of said Lane, was read, setting forth that he had been the attorney for said Lane in said action, in which judgment had been recovered in favor of said Lane, and against the plaintiff, Naylor. That he has not been paid for his professional services in said action by said Lane, and believes that he will not be paid by him, that from the time of his employment by said Lane, there had been an agreement with Lane that all costs recovered in the action should belong to him, Hulett, and not to the defendant.

The learned judge at special term granted the said motion to set off, and the defendant Lane has appealed.

It seems to me that the appeal should be sustained.

The effect of setting off one judgment against the other in this case, is that the amount of the judgment in favor of dendant, Lane, for costs, has been paid by the plaintiff to Lane, whereas it did not belong to Lane, but to Lane’s attorney as taxed costs in the action, and by special agreement with Lane, of which the plaintiff had notice.

The lien of the attorney on a judgment recovered for the amount of his costs, &c., is well settled, and has sometimes been regarded as an equitable assignment of the judgment to him (Marshall v. Meech, 51 N. Y. 140; Dimick v. Cooley, 3 Civ. Pro. Rep. 141; citing Coughlin v. N. Y. Cent. R. R., 71 N. Y. 443; Wright v. Wright, 70 ld. 96). To protect the attorney’s lien in the case at bar, there was no necessity that notice should have been served on the plaintiff (Moloughney v. Kavanagh, 3 Civ. Pro. Rep. 253).

Notice in this case, however, was given, and no settlement of the litigations between the parties themselves by set off, or otherwise, which defeated the lien of the attorney, was proper (In re Bailey, 4 Civ. Pro. Rep. 140).

Sanders v. Gillett, 8 Daly, 184; and Garner v. Gladwin, 12 Week. Dig. 9 (the cases cited in the argument below), seem to me to differ in their essential elements from the case at bar, and are not controlling.

The order appealed from should be reversed, and the motion denied, with $10 costs.

I concur.—Perry v. Chester, 53 N. Y. 240, Sedgwick, Ch. J.  