
    Charles V. T. Foley et al., Plaintiffs, v. August C. Scharmann et al., Defendants.
    (Supreme Court, New York Special Term,
    November, 1899.)
    Counterclaim — Code Civ. Pro., § 501.
    Where a complaint seeks to recover o£ the defendants, as sureties of Julius Scharmann, costs of trial and of appeal awarded the present plaintiffs in an action hitherto unsuccessfully brought by him against them as executors of a decedent, the sureties of Scharmann may, as-his assignees, interpose a counterclaim growing out of the surety-ship of the plaintiffs’ testator for a certain administratrix and her failure to pay Scharmann certain costs awarded by a surrogate’s decree to him personally, as well as certain referee’s fees directed to be paid by her but for which Scharmann remains liable, as both the complaint and the counterclaim allege valid causes of action on contract, which may be set off against each other.
    Demubbeb to counterclaim.
    David F. Tourney and Edward Goldschmidt, for demurrer.
    Howard A. Sperry, opposed.
   Gtldebsleeve, J.

This is a demurer to' a counterclaim. The complaint alleges that one Julius Scharmann, who is not a party to this action, sued the plaintiffs herein as executors of one A. M. Foley, deceased; that the complaint in said action was dismissed, ■and judgment for costs entered in favor of these plaintiffs; that an appeal was taken, and the judgment of dismissal affirmed, and another judgment for costs entered in favor of these plaintiffs; that ■defendants herein were sureties on the undertaking on appeal, and jointly and severally bound themselves to pay the said judgment so appealed from, together with the costs of the appeal; and the complaint demands judgment against these defendants accordingly. The answer, among other things, sets up a counterclaim, alleging that the plaintiffs’ testator, in his lifetime, became surety on the ■bond of one Sophia Froeschle, as administratrix; that said administratrix was ordered by the surrogate to pay certain costs to said Julius Scharmann, and also to pay the fees of a referee; that the administratrix has not paid such costs and fees; that the referee ■demands his fees from Julius Scharmann, who is liable therefore and that previous to the commencement of this action said Julius Scharmann assigned his claim to these defendants; that said testator upon such bond bound his executors, the plaintiffs herein, and rendered them responsible for the administratrix in her failure to perform her duties as such, and obey the said order of the surrogate; and defendants herein counterclaim, as assignees of the said ■claim of Julius Scharmann, accordingly. The plaintiffs demur to the counterclaim on the grounds (1) that it is not of the character specified in section 501 of the Code, and (2) that it does not state facts sufficient to constitute a cause of action. The section in question provides that, in an action on contract, the defendant may counterclaim any other cause of - action on contract existing at the ■commencement of the action. The complaint in the case at bar ■clearly sets forth a cause of action on contract, to which the defendants counterclaim a cause of action on contract existing at the time of the commencement of the action. It, therefore, seems that the counterclaim is within the provisions of the section referred to. I am also of opinion that the counterclaim sets forth facts sufficient to constitute a cause of action. The fact that the assigned claim is for costs is not fatal, for there is nothing to show that the attorney for Julius Scharmann has ever asserted his lien or attempted to enforce it. A judgment for costs is the property of the judgment creditor, and must be so treated by the courts until an attorney attempts to enforce his lien thereon. See Wehle v. Conner, 83 N. Y. 232. The same principle applies to a claim for costs, in a case like this, where the decree of the surrogate ordered payment of the costs to Julius Scharmann, not to his attorney. The demurrer must be overruled, with leave to reply within twenty days on payment of costs.

Demurrer overruled, with leave to reply.  