
    Hussey v. Culver et al.
    
    
      (Supreme Court, General Term, First Department.
    
    July 9, 1889.)
    1. Judgment—Equitable Assignment—Oedbb on Attobney.
    Where a plaintiff in a judgment gives to a creditor an order on his attorney to pay to Mm the money collected by the attorney on the judgment, which order the creditor delivers to the attorney, it creates an equitable assignment of and lien on the proceeds of the judgment, and the attorney holds the same in trust for the creditor, and such assignment cannot be revoked by the judgment plaintiff.
    2. Payment—Bueden oe Peoof.
    Where defendants plead payment, the burden of proof is on them; and where they produce no books to support their claim, and their evidence is vague, and plaintiff presents his books and accounts for payments shown therein in a manner consistent with the alleged indebtedness, the judgment in favor of plaintiff will not be reversed.
    Appeal from special term, Hew York county.
    William H. Hussey sued W. W. Culver and Benjamin Wright, to recover money collected by them as attorneys for Alexander Low, and by Mm alleged to have been assigned to plaintiff. The court entered judgment for plaintiff, and defendants The is the opinion of the court below:
    “Lawrence, J. That the order dated March 18, 1880, addressed to the defendant, and signed by Alexander Low, was a good equitable assignment of the proceeds of the judgment in the action brought by said Low against the Brooklyn, Flatbush and Coney Island Railroad Company, less the fees, costs, and charges of the defendants, cannot, I think, under the decisions in this state be doubted. People v. Comptroller, 77 N. Y. 45; Parker v. City of Syracuse, 31 N. Y. 376; Field v. Mayor, etc., 6 N. Y. 179; Attorney General v. Insurance Co., 71 N. Y. 325; Jones v. Mayor, etc., 90 N. Y. 387. And it was not necessary to the validity of such assignment that the same ■should have been accepted by the defendants. See People v. Comptroller, supra. It is also immaterial whether the judgment had actually been recovered at the time that the order was made. Jones v. Mayor, etc., supra. The order in question, being good as an equitable assignment, was irrevocable, and tlie defendants were not bound or authorized to recognize any countermand thereafter made by Low. Munger v. Shannon, 61 N. Y. 258. The evidence given upon this trial does not materially differ from that presented on the former trial before Mr. Justice Beach. It fails to satisfy me that the claim •of the plaintiff was at any time paid by Low, or that the order in consequence thereof ever became inoperative. The only question in this case upon which I have entertained a doubt has been as to whether the proceedings taken against the defendants by the plaintiff as attorneys, and the decision thereon, can be regarded as a bar to this action. Upon reflection I am of the opinion that neither those proceedings nor such decision can be regarded as having disposed of the question involved in this case. The relation of client and attorney did not exist between the plaintiff and defendants. In Hess v. Joseph, 7 Rob. (N. Y.) 609, the proceedings were dismissed on the ground that a summary application to compel an attorney to pay over money received in his professional capacity is only entertained on the motion of the client; that it is a privilege given to clients for their protection against exactions and overreaching, and is not extended either to outside parties or to assignees of clients. It is quite clear, therefore, that the motion before Justice Donohue, •ought to have been, and the presumption is that it was, denied on the ground that the plaintiff in this action did not come within the class of those authorized to make such a motion. Again, it appears that the motion was simply denied, no opinion being written, and no reason given for such denial. If any presumption is to be entertained in regard to the reasons which led to such denial, I think it must be presumed that it was denied on the ground that it was improperly brought. Hess v. Joseph, supra. See, also, Veeder v. Baker, 83 N. Y. 162, 163, and Schrauth v. Bank, 86 N. Y. 390; Howell v. Mills, 53 N. Y. 323. In the last case it was held that a refusal to grant relief upon a summary application is not ordinarily a final adjudication of the merits of the controversy. It would bar another summary application, unless leave is given to renew, but will not affect another remedy. In the cases cited by the learned counsel for the defendant it would appear either that the subject-matter involved in the subsequent suit was litigated in the prior proceeding or suit, or that the question involved therein was necessarily involved in such prior suit or proceeding. In the proceeding before Justice Donohue the question of the validity of the order of March 18,1880, as an equitable assignment was not necessarily involved in the decision of the question whether, the relation of attorney and client not existing between the present plaintiff and defendants, the plaintiff was entitled to move against them as attorneys to compel payment of the judgment assigned to him. For these reasons the plaintiff is entitled to judgment, with costs.”
    Argued before'Yan Brunt, P. J., and Brady and Bartlett, JJ.
    
      H. H. Pomeroy, for appellants. G. G. Lay, for respondent.
   Yan Brunt, P. J.

The defendants were attorneys and counselors, and were copartners as such during the period covered by the events out of which the plaintiff’s cause of action arose. They brought an action against the Brooklyn, Flatbush & Coney Island Kailroad Company in the supreme court on behalf of their client, one Alexander Low, and have succeeded in recovering a judgment in his favor, which has been appealed to the general term. Before the appeal to the general term was determined, said Low, who was then indebted to the plaintiff, made and executed an order in writing, directed to the defendants herein, of which the following is a copy: “Hew York, March 18th, 1880. Messrs. Culver & Wright—Gentlemen: You will please pay over to William H. Hussey, of 135 W. 30th street, Hew York city, all moneys collected or received by you upon the judgment in the action in the supreme court in my favor against the Brooklyn, Flatbush & Coney Island Railroad Company, after deducting your costs, charges, and fees therein. Alexander Low. ” The said order was delivered to the plaintiff, and the-same was subsequently delivered to, and left in the custody of, the defendants. On or about the 23d of October, 1883, and while the appeal from the judgment in said action was pending in the court of appeals, Low wrote and indorsed upon the aforesaid letter the following notice, and delivered the-same to the defendant: “Hew York, October 23d, 1883. Messrs. Culver & Wright, Attorneys, &e.—Gentlemen: You will please take notice that I hereby countermand and withdraw the within notice and order, and require-that said money shall be paid over to me, the same as if the said notice or order had never been given.” On said day the defendants received and collected $3,254, being the full amount of the judgment aforesaid. The plaintiff thereafter demanded from said defendants the proceeds of the judgment recovered, after deducting their costs, charges, and expenses, and the defendants refused to pay the same or any part thereof to him. The plaintiff thereafter, in January, 1884, presented his petition to this court, entitled in the action against the Brooklyn, Flatbush & Coney Island Railroad Company setting up the facts above mentioned, and praying that the court would make an order requiring the said defendants, who were the plaintiff’s attorneys in. said action, to pay the amount collected by them upon said judgment, after deducting therefrom their allowances, costs, and disbursements; and made a motion thereon for the relief prayed for in said petition. This motion was-opposed by the defendants, and denied. Thereupon this action was brought,, and the learned court below determined that the order executed on March 18, 1880, by Low, and directed to the defendants, was an equitable assignment of the proceeds of the judgment, and that such order was not the subject of countermand by said Low, and that it was irrevocable, and that said assignment created an equitable lien on the moneys received and collected by the defendants on account of the judgment, and that from the date of the receipt, thereof by the defendants they held the same in trust for the plaintiff, and. that the plaintiff was entitled to recover judgment against the defendants accordingly, and that the proceedings resulting in the denial of the motion upon the petition were no bar to this action, and that the plaintiff was entitled to-an interlocutory judgment ordering a reference to ascertain the amount of the costs, charges, and fees of the defendants as such attorneys in said suit; and from such judgment this appeal is taken.

It is not necessary to add anything to that which has been said in the opinion of the court below as reasons for holding that the order addressed to the defendant and signed by Low was a good, equitable assignment of the proceeds of the judgment in question. The authorities cited by the learned court sustain this proposition. And that such equitable assignment was irrevocable is also clearly established in said opinion; and the grounds given for holding that the proceedings upon the motion were not a bar to the maintenance of this action meet with our approval under the authorities cited. The only question which it is at all necessary to refer to at large is the question of fact ,as to the defense urged by the defendants, that the claim which the plaintiff held against Low, and as security for the payment of which this order was given, had been paid prior to the commencement of this action. The evidence upon this point is undoubtedly exceedingly unsatisfactory. The burden of establishing this defense was upon the defendants. That an indebtedness existed in favor of the plaintiff at the time of the giving of this order seems to be established; that it was paid at any time subsequent thereto does not appear from the evidence. It is true that certain payments were admitted upon the part of the plaintiff; but it is equally true that those admissions were coupled with assertions of indebtedness which were inconsistent with the idea that the indebtedness which Low owed to the plaintiff had been satisfied. The evidence of payment, given by Low, was of the most vague and unsatisfactory kind. Ho books or papers whatever were produced to support the claims made by him; and upon the part of the plaintiff books were presented, payments accounted for, and explanations given, entirely consistent with the existence of an indebtedness from Low to the plaintiff, of more than the amount which could possibly be realized from the judgment against the railroad company. These questions of fact were determined by the judge below against the appellants, and there is no preponderance of evidence disclosed by the case which would justify us in reversing his conclusions. We .are of opinion, therefore, that the judgment appealed from must be affirmed, with costs. All concur.  