Earley v. Whitney

Patterson, J.: This is an appeal from' an order vacating three satisfaction pieces of judgments for costs in favor of the defendant Catherine. Whitney. It appears that the plaintiff brought this action to foreclose, what he calls an attorney’s lien for services rendered by him as attorney for one Bridget L. Keegan in an action brought by her as administratrix, etc. (for damages resulting from the death of her husband), against Catherine Whitney, executrix, etc. That action was originally brought against David L. Whitney, who died before the trial. Mr. Earley procured an order reviving the action against Catherine Whitney as executrix. Thereafter Bridget Keegan, as administratrix, etc., of her husband, settled the action with Catherine Whitney, executrix, etc.,, without the knowledge or consent of Earley, through Francis Y. S. Oliver, who was the attorney for Catherine Whitney, When Earley discovered that the settlement had been made he brought this action to foreclose Ins lien and in -his complaint set forth that the settlement had been made. The plaintiff’s action was dismissed and the dismissal was affirmed in this court (74 App. Div. 630) and in the Court of Appeals (180 N. Y. 543). Judgments for costs.were rendered in favor of Catherine Whitney and she satisfied them. Thereupon Mr. Oliver, her attorney, moved to vacate and set aside the satisfaction pieces and foi* an order directing that the amounts due under the judgments or costs be made payable to him, or for such other relief as to the court may seem just. The court granted the motion, -but we think erroneously. The judgments for costs were in favor of Mrs. Whitney. These costs belonged to her. They were indemnity to her for the expense she was put to in the action. Costs belong to the client and not to the attorney. (Starin v. Mayor, etc., of N. Y., 106 N. Y. 82; McIlvaine v. Steinson, 90 App. Div. 77; Barry v. Third Ave. R. R. Co., 87 id. 543.) There is no question here of an agreement between an attorney and client. The simple point is to whom do the costs belong. • They belonged to Mrs. Whitney and she had a right to satisfy the judgments awarding them. The subject for considera [401] tion is not the lien of an attorney, but the right of the owner of a judgment to satisfy it. The order appealed from was wrong and should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs. O’Brien, P. J., Ingraham, McLaughlin and Hatch, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.