In the Matter of the Application of James S. McDonogh, Appellant, for an Order Directing George H. Sherman, as Committee of the Property of Isaac C. Wickes, an Incompetent Person, Respondent, to Pay a Claim

In the Matter of the Application of James S. McDonogh, Appellant, for an Order Directing George H. Sherman, as Committee of the Property of Isaac C. Wickes, an Incompetent Person, Respondent, to Pay a Claim. First Department, May 6, 1910. Assignment of judgment — offset — attorney and client — lien merged on assignment of judgment. A judgment for costs rendered on the discontinuance of an action and assigned by the defendant to his attorney cannot be offset against a judgment recovered by the committee of the- plaintiff against the same defendant after the assignment. Where an attorney accepts an assignment of a judgment in his client’s favor, his lien is merged in the judgment. Appeal by the petitioner, James S. McDonogh, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 22d day of March, 1910, denying the petitioner’s motion for an order directing the committee of the property of Isaac C. Wickes to pay a claim. Francis X. McDonough, for the appellant. Mason Trowbridge, for the respondent. [MAJORITY — Dowling, J.:] Dowling, J.: On April 2, 1909, Isaac 0. Wickes commenced actions in the Municipal Court against one Brenner and one Perrington for goods sold and delivered, their attorney being J. E. Murphy. On April twelfth, Wickes, having been declared an incompetent, a committee of his person was appointed. On April twenty-second the Municipal Court refused-to substitute the committee in-the stead of Wickes as a party plaintiff in such actions, and they were discontinued, with costs to the defendants of thirty-two dollars and sixty-five cents and seventeen dollars and sixty-five cents, respectively. On April twenty-eighth said Murphy, the attorney, received an assignment of these judgments, which assignments operated to effectuate his attorney’s lien, which then became merged in the judgments. Thereafter Murphy assigned these two judgments to the petitioner herein who now seeks to have the committee directed to pay the same. "In the meantime the committee had commenced new actions against Brenner and Perrington which went to judgment, but the judgments were obtained after Murphy had assigned his judgments to the petitioner. Under these conditions no right to set off . existed, for such right must exist as of the time when the assignment was made, and at that time there was no judgment in favor of the committee which could be offset against the judgments for costs. . (Fera v. Wickham, 135 N. Y. 223.) The order appealed from must, therefore, be reversed, with ten dollars costs and disbursements, and the application to direct payment granted,- with ten dollars costs. Ingraham, P. J., McLaughlin, Clarke and Scott, J J., concurred. Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.