
    Peter A. Delany, Resp’t, v. Charles Miller, Jr., App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed February 12, 1895.)
    
    1. Pleadings—Demurrer.
    In tlie consideration of a demurrer to a separate answer, the court has before it and can consider only the complaint, the separate answer demurred to and the demurrer.
    
      2. Same—Counterclaim—Costs.
    The costs recovered in an action belong to the attorney without any assignment, and his claim thereto is superior to the right of the adverse^ party in the action to set off claims against the successful party.
    Reargument after reversal of an interlocutory judgment, sustaining a demurrer to defendant’s counterclaim..
    
      William T. Murray, for app’lt; Stephens & Delaney (Peter A. Delaney, of counsel), for resp’t.
   Putnam, J.

The court below sustained the demurrer on the-ground that plaintiff’s action was not brought upon a contract, and hence the cause of action set up in the answer did not constitute legal counterclaims, as held in Furber v. McCarthy, 27 St. Rep. 294. When this case was first before this court, our attention was chiefly devoted to the position taken by the learned justice at special term, and we reached the conclusion that plaintiff’s claim upon undertaking set out in the complaint was a cause of action upon contract, to which a counterclaim could be legally interposed. But in our consideration of the case we overlooked the fact that the separate answer demurred to contained no denial of any allegation in the complaint, and hence that, in our consideration of the question of the sufficiency of such answer it should be remembered that all the allegations of the complaint were admitted. It is true that the first separate defense contained in the answer denied all the allegations set out in the complaint, except the execution of the undertaking; but there is no denial in the second part of the answer, and it is well settled, that in the consideration of a demurrer to a separate answer the court only has before it, and can only consider, the complaint, the separate answer demurred to, and the demurrer. In Douglass v. Phenix Insurance Co., 138 N. Y. 209-215 ; 52 St. Rep. 164, where a demurrer had been interposed to a separate defense contained in the answer, it is said :

“The allegations of the complaint nor denied in the affirmative defense are, for the purposes of the question now presented, to be deemed admitted. The affirmative defense is to be treated as a separate plea, and the defendant is not entitled to have the benefit of denials made in another part of the answer, unless repeated or incorporated by reference, and made a part of the affirmative defense.”

In Valentine v. Lunt, 51 Hun, 544-547 ; 22 St. Rep. 847, Justice Dykmak remarks:

“As the defense to which the demurrer was interposed makes no deuial of any of the allegations of the plaintiff, the complaint stands admitted, for all purposes of the demurrer, precisely as if it was the sole and only defense set up by the answer.”

See, also, Boyd v. McDonald, 35 St. Rep. 484; Hammond v. Earle, 58 How. Pr. 426. In the opinion of Justice Mayham, delivered when this case was first considered by this court, he remarked (78 Hun, 19, 20 ; 51 St. Rep. 481):

By the assignment to the plaintiff in this action the right of the original obligee passed to him, added to which was his lien for services, but, until the value of such services were liquidated and ascertained, it could not, as matter of law, be said that they were sufficient in amount to equal the defendant’s liability on the undertaking, which was as well for damages as costs, and any valid defense as to any excess existing between the original parties would be good as against the assignees of the bond.”

But in fact, by the failure of defendant in the answer to deny any of the allegations of the complaint, the value.of plaintiff’s services were liquidated and admitted to be equal to the amount of the judgment for costs sought to be recovered in this action. It is admitted that the judgment set up in the complaint was entirely for costs; that plaintiff was attorney in the action; that the value of his services exceeded the - amount of the judgment; and that plaintiff has not been paid, and his client is irresponsible. Hence the allegations in the complaint, not being denied in the answer to which the demurrer was interposed, and it being in the pleading admitted that the judgment which plaintiff seeks to recover was entirely for costs; that he was attorney for the plaintiff in the action; and that the value of his services equaled the amount of the judgment,—under the doctrine assumed by this court in Delaney v. Miller, 78 Hun, 19-20; 61 St. Rep. 481, defendant’s alleged counterclaims cannot be set off against plaintiff's bill of costs in the action referred to in the complaint. It is well settled that the costs recovered in an action belong to the attorney, without any assignment, and that the claim of the attorney thereto is superior to the right of the adverse party in the action to set off claims against the successful party. Tunstall v. Winton, 31 Hun, 219; Ennis v. Curry, 22 id. 584. In Marshall v. Meech, 51 N. Y. 140-143, it is said, as to an attorney’s lien:

“The lien exists, not only to the extent of the costs entered in the judgment, but for any sum which the client agreed his attorney should have as a compensation for his services. To the amount of such lien, the attorney is to be deemed as equitable assignee of the judgment. To the extent of the taxed costs entered in the judgment, the judgment itself is legal notice of the lien, and this lien cannot be discharged by payment to any one but the attorney.”

For the reasons above stated, we think the court below properly sustained the demurrer, and hence that the judgment should be affirmed, with costs.

All concur.  