MARTIN a. KANOUSE

MARTIN a. KANOUSE. Supreme Court, First District; General Term, December, 1855. ANsweR. — WheN Fkivolocs. On appeal from an order of the special term rendering judgment for the plaintiff on account of the frivolousness of the answer, the general term should sustain the order where the answer does not establish a good defence, although they might not regard the answer as frivolous. Prima facie a judgment in favor of a party belongs to him and not to his attorney, whether it be for costs alone, or for debt and damages and costs ; and an answer which seeks to rebut this presumption should show facts which overthrow it. The fault in an answer deficient in this respect, is, that it is not definite and certain. The only remedy for that imperfection is held in this district to be by motion under § 160 of the Code. Appeal from an order of the special term, rendering judgment for plaintiff on a demurrer and answer, as frivolous. The complaint in this action set forth that Couthout and Bleecker had formerly recovered a judgment against the defendant Kanouse, of which the plaintiff had become the owner, by purchase and assignment. That the defendant had since recovered a judgment against the plaintiff; which was recovered in certain suits in error in the New York Superior Court and in the Supreme Court of the United States. These suits in error arose out of an action brought by the plaintiff against the defendant to recover for professional services rendered in other suits. The complaint prayed a set-off of the judgment held by the present plaintiff against that recovered against him by the defendant, and that defendant might be restrained, pending the suit, from enforcing his judgment. The defendant Kanouse put in a demurrer to that part of the complaint which set forth that the original suit in which the judgment held by the defendant against the plaintiff was rendered, was for professional services, &c. As to the residue, he answered, averring, amongst other things, that the judgment recovered by him against the plaintiff was for costs only, no part of which ever belonged to the defendant, but to Andrew S. Garr, his attorney in the suits in error in which they were recovered; and that the defendant therefore was not the beneficial owner of the judgment thus held bj him. The plaintiff moved at special term for judgment on the demurrer and answer as frivolous. The motion was granted, and final judgment of set-off ordered, which was entered. Prom this order the defendant appealed. A. & Garr and W. C. Noyes for appellant. The respondent in person. [MAJORITY — Mitchell, J.] Mitchell, J. The defendant appeals from an order of the special term, pronouncing his answer frivolous. On such appeal if the answer does not establish a good defence, the general term should sustain the order made, although it might not regard the answer as frivolous. The plaintiff shows that Couthout and Bleecker obtained a judgment against Kanouse, that Bleecker died, and then Couthout, as survivor, assigned the judgment to the plaintiff; that Kanouse also recovered judgment against the plaintiff, and the object of the action is to set-off one judgment against the other. The question intended to be finally presented to the Court is whether the attorney for Kanouse had such a lien for the costs recovered in the suit between Kanouse and the plaintiff, that the plaintiff cannot set-off the judgment which he now holds against the judgment which stands in Kanouse’s name against the plaintiff. The Court is inclined to have that question fairly presented, and that the decision on the merits should not be finally defeated by any imperfection in the pleadings, or by any doubtful construction (on the part of the Court) of the pleadings of either party. The answer alleges that the judgments in favor of Kanouse are for costs only, no part of which ever belonged to this defendant, but belong to Garr as his attorney in those suits; and that the defendant is not the beneficial owner of the judgment recovered in his favor. Prima facie a judgment in favor of a party belongs to him whether it be for costs alone, or for debt or damages and costs; and it might follow under a rigid system of pleading, that this prima facie conclusion must continue until the pleader should show how and by what means a transfer of this right was made so as to justify a different conclusion. Under such a system the answer would be frivolous, because it does not show facts sufficient to change the prima facie conclusion of law. It does not show how it is that the costs recovered never belonged to this defendant, nor how it is that he is not the beneficial owner of the judgments. The real fault, however, in this kind of pleading, is that it is not as definite and certain as it should be, and for that imperfection the Supreme Court in this district has held the only remedy to be that pointed out by the Code — • a motion to make it more definite and certain. If it be true that these costs did not belong to the defendant when the assignment was made to the plaintiff, and the defendant should prove that fact by showing an assignment made by him to Garr, or a valid agreement that the costs should belong to Garr, the defendant would probably succeed, and the question intended to be raised not be passed upon. The proper course will be to reverse the order of the special term without costs, and to leave the plaintiff to move that the answer be made more definite and certain, and then the defendant should show how, and in what manner, and for what reason, the costs never belonged to the defendant, whether it was by virtue of the attorney’s lien for costs, or by virtue of any special agreement between the defendant and his attorney, and if the last, what that agreement was, and when it was made, whether by parol or in writing. The defendant’s allegation as to part is in the present tense, that the defendant is not the beneficial owner of the judgment, and that the costs ielong to Mr. Garr, his attorney; this also should be amended, and he should state that they so belonged to Mr. Garr at least before the commencement of this action, if not before the assignment to the plaintiff. In those respects, also, the answer should be made more definite, fixing the time when Garr became either the owner of the costs or a lien-holder of them. When the pleadings shall be corrected in these respects the Court must suggest to both parties that it will be to their interest to allow the cause to proceed to trial without continual motion before the Court. At the trial the facts will be disclosed, and the cause put in train for a final decision on the merits.