Opinion
October 13, 1942.
Order dated February 21, 1942, directing the assignee for the benefit of creditors to pay a judgment for costs obtained by a defendant in an action prosecuted by the assignee, without regard to the lien of the attorneys for the assignee who prosecuted the action and recovered a fund for the assignee from another defendant, reversed on the law, with ten dollars costs and disbursements to appellants Ornstein Silverman, payable out of the fund, and the motion denied, without costs and without prejudice to the right of respondent to apply for payment out of the fund after the determination of the amount and payment of the lien of the appellant attorneys. The attorneys' lien attached upon commencement of the action in 1936, and is not inferior to a judgment subsequently obtained by respondent. ( Bacon v. Schlesinger, 171 App. Div. 503.) The decision in Columbian Insurance Co. v. Stevens ( 37 N.Y. 536) and other similar decisions were not concerned with the question of priority as between attorneys' liens and a subsequently-obtained judgment. There was never a time when the assignee and the respondent held cross-judgments against each other, and hence there was never any right or occasion for offset as in the case of Baumwald v. Two Star Laundry Service, Inc. ( 234 App. Div. 392; affd., 260 N.Y. 538) and similar cases. Appeal from the order dated March 11, 1942, denying motion of appellant B.J. Goldberger Company to vacate the above-described order dismissed, without costs. The lien of the judgment for costs has priority over general administration creditors' claims. ( Sielcken v. Roland Steel Co., Inc., 232 App. Div. 767.) Lazansky, P.J., Hagarty, Carswell, Adel and Taylor, JJ., concur.