ROEDIGER v. SIMMONS

ROEDIGER v. SIMMONS. N. Y. Common Pleas; Special Term, March, 1877. Attorney and Client.—Set-off. Where plaintiff suffers judgment in favor of one defendant, and recovers against another, the latter, on obtaining an assignment of the former judgment before receiving notice of the attorney’s lien for costs, may have the judgments set-off on motion. Without a transfer of some interest in the claim to the attorney, and notice given by him of his interest, the plaintiff may settle the suit, notwithstanding it may prejudice the prospect of his attorney’s obtaining costs of a future trial, and a judgment for costs in favor of his client. So, also, other persons may acquire legal rights of set-off, as against the demand in suit, without regard to such future lien of the attorney. Motion by certain of the defendants to set-off two judgments against each other. This action was brought by Adam Roediger against' Zachariah E. Simmons, William L. Simmons, Chester . Simmons, Josiah Howard Adams, Jacob Bansch, John Simmons, and Charles H. Murray, under the provisions of the statute, being part 1, chapter 20, title 8, article 4, § 32 of the Revised Statutes, entitled “ of Raffling and Lotteries,” to recover double the amount paid by him for lottery tickets alleged to have been purchased at various times by bim from the defendants. Upon the trial the complaint was dismissed as to Jacob Bausch, Charles H. Murray and John Simmons, and a verdict rendered on February 21, 1876, against the other defendants and in favor of the plaintiff for $201.96. The defendants Bausch, Murray, and John Simmons, in March and May, 1876, executed and delivered to the other defendants assignments of the costs and disbursements which were to be taxed and allowed in the judgment for dismissal of the complaint against them. In May, 1876, in proceedings supplementary to execution issued upon a judgment in favor of one Bankowskie against Roediger, a receiver was appointed, who immediately notified the defendants (against whom the verdict was rendered in this action Roediger ». Simmons and others), of his appointment as receiver of Roediger’s estate, and forbade the payment of money upon this judgment to any person other than himself. Judgment on the verdict was entered on February 13,1877, in favor of Roediger and against Zachariah E. Simmons, William L. Simmons, Chester Simmons, and Josiah H. Adams, for $679.89, and on the same day judgment was entered in favor of Jacob Bausch, Charles H. Murray, and John Simmons, against Roediger for $223.23. Upon affidavits setting forth these facts, the defendants, Zachariah E., William L., and Chester Simmons, and Josiah H. Adams, moved for leave to set-off the judgment in favor of Bausch and others, and assigned to them, against the judgment in Roediger’s favor, and for leave to pay the balance of the amount due upon the same to the clerk of the court, and upon so doing, the judgment to be satisfied. The plaintiff’s attorney claimed in opposition a lien upon the whole judgment. The motion was opposed on behalf of the attorney of record, who claimed as well the taxable costs as the damages recovered in the action, stating that the disbursements were taxed in the action for witnesses’ fees, &c., at $186; of which he claimed he expended $22.36. He also claimed to retain all that might be collected on the judgment for his services in the action, which he testified were reasonably worth over $2,000. The motion was also opposed by a receiver of the plaintiff, who was appointed in supplementary proceedings against him, May 15, 1876, on a judgment previously recovered against him by Robert Bankowskie, for $207.26, still due with costs and receiver’s fees. George Owen, for the motion. Charles E. Soule, opposed. I. The defendants’ claim to set-off in this action arises from two considerations : 1. The equity arising from the fact that the costs were earned in the same litigation. 2. The plaintiff is insolvent. II. Though an attorney’s lien for costs may be upheld as against an independent judgment against his client, it must yield to the equity arising in the same litigation (Dunkin v. Vandenbergh, 1 Paige, 622 ; Porter v. Lane, 8 Johns. 277; Ross v. Dole, 13 Id. 307). III. The cases in which an attorney’s lien has been held to prevent a set-off will be found to be those in which the attorneys had some additional right by priority of lien or contract or superior equity apart from mere lien (Nash v. Hamilton, 3 Abb. Pr. 35 ; Purchase v. Bellows, 14 Abb. Pr. 357; Ely v. Cooke, 28 N. Y. 365 ; Roberts v. Carter, 38 Id. 107; Zogbaum v. Parker, 55 Id. 120 ; Perry v. Chester, 53 Id. 240). Even if Roediger agreed that Mr. Clinton should have a lien to .the extent of the amount recovered and costs for his compensation, he could not do that so as to affect the defendant’s equity arising in the same action. He became merely an equitable assignee, bound to meet other equities (Marshall v. Meech, 51 N. Y. 140 ; Dunkin v. Vandenbergh, 1 Paige, 622; Quimby v. Sloan, 2 E. D. S. 607). Besides, by taking assignment he became liable to pay costs, and where he is an equitable assignee of the whole recovery, it is equivalent to actual assignment (In re Dowling v. Bucking, 52 N. Y. 658 ; Genet v. Davenport, 58 Id. 607). Compare Coughlin v. N. Y. Central R. R. Co., 8 Hun, 136; Richardson v. Brooklyn City, &c. R. R. Co., 7 Id. 69. See, also, Stillwell v. Carpenter, p. 238 of this volume. [MAJORITY — Robinson, J. [After stating the facts.]] Robinson, J. [After stating the facts.] The attorney in the action has not been superseded in his authority to enforce and collect the judgment, and, when collected, he would have a lien upon the amount due him from his client for professional services rendered him. But such equitable lien is superseded by the statute of set-offs (Nicoll v. Nicoll, 16 Wend. 446, in court of errors), and is no bar to the right of set-off of one judgment against another. Some cases suggest a distinction between one presented by an action directly brought to effect such set-off, and a mere motion for that purpose, but I can perceive no ground for any contrariety of decisions. ‘ ‘ Equitas sequitur legem. ’ ’ Whatever lien in favor of the attorney might attach to the judgment when recovered, it was subordinate to the right of set-off which the defendants had previously acquired as against his client. He who is “prior in tempore, potior est injure,” without transfer of some interest in the claim to the attorney, and notice given by him of his interest, the plaintiff may settle the suit, notwithstanding it may prejudice the possibility or probability that Ms attorney might obtain costs of a future trial and a judgment for costs in favor of Ms client (Shank v. Shoemaker, 18 N. Y. 490 ; Wade v. Orton, 12 Abb. N. S. 444; Pulver v. Harris, 52 N. Y. 73). So also other parties may acquire legal rights of set-off, as against the demand in suit, without regard to such future lien of the attorney. In the present case, before any such lien accrued, these defendants had acquired the right of their co-defendants to the costs, ensuing from a dismissal of the complaint as against them. For these reasons I am of opiMon the set-off sought for should be allowed, and the motion is granted without costs.