Drake v. Pierce Butler Radiator Corp.

Malpass, J. This is a motion brought on by an order to show cause for an order vacating an order granted January 19, 1951, directing the filing of an appeal bond by the defendant, Pierce Butler Badiator Corporation in the sum of $5,000 and permitting the cancellation of said bond, also vacating that part of said order of January 19, 1951, which stayed the issuance of an execution on a judgment held by the Pierce Butler Badiator Corporation against Ernest A. Drake and Mary B. Drake. The motion is made on the ground that the amount of the judgment in favor of the plaintiffs in the above-entitled action, as finally determined by the Appellate Division upon appeal is less than the amount remaining unpaid on the judgment held by the Pierce Butler Badiator Corporation. The facts relating to these judgments are more fully discussed in the decision on a cross motion made in behalf of the attorneys for the plaintiffs above named for the enforcement of an attorney’s lien on the proceeds of the judgment recovered by the above-named plaintiffs against the defendant, which motion has been decided in favor of the lien of said attorneys (202 Misc. 935). Under the circumstances existing in this case and in view of the decision upholding the right of said attorneys to an attorney’s lien, the motion of the defendant should be denied and an order to that effect may be entered herein. (Knickerbocker Investment Co. v. Voorhees, 128 App. Div. 639, appeal dismissed 195 N. Y. 569; Baxter v. Connor, 119 App. Div. 450.)