Opinion
January 6, 1915.
Tibbitts Walker, for the appellant.
Slade, Harrington Goldsmith [ Irving I. Goldsmith of counsel], for the respondents.
A judgment was rendered in the Supreme Court in an action for trespass for the sum of $171.62 in favor of Marion Ross and Nancy Shea and against Harvey Steele. An execution was issued to the sheriff of Saratoga county upon this judgment, but it was returned unsatisfied, and subsequently an execution against the person of Harvey Steele was issued and he was taken into custody and confined in the Saratoga county jail. Subsequently Steele made an application under the Debtor and Creditor Law to be discharged from imprisonment and he was discharged. An appeal to the Appellate Division from the order discharging him was taken by Marion Ross and Nancy Shea, but the order of discharge was affirmed, with costs (See 158 App. Div. 894), amounting to $63.22 in favor of Steele. An application was made by Ross and Shea to the Saratoga County Court to have the judgment for costs, obtained by Steele, offset and credited upon the judgment previously obtained by Ross and Shea against Steele. This motion was granted and from that order an appeal is taken to this court.
Under section 475 of the Judiciary Law and under numerous decisions of the courts construing section 66 of the Code of Civil Procedure (the statute on this subject which preceded section 475 of the Judiciary Law) the attorney for Steele, on the appeal from the order discharging him from custody, undoubtedly has a lien on this judgment of sixty-three dollars and twenty-two cents for costs. The county judge in his memorandum based his determination upon the proposition that the costs belong to the client and not to the attorney. This is the law, but it in no manner affects the attorney's lien upon the judgment for costs. ( Matter of Regan, 167 N.Y. 338; Agricultural Insurance Co. v. Smith, 112 App. Div. 840; Barry v. Third Ave. R.R. Co., 87 id. 543.)
These convincing authorities and the plain language of the statute would require us to reverse the order of the county judge were the record sufficient to form a basis for such action. It seems to us, however, to be wholly insufficient. Walker, the attorney for the appellant, has failed to make an affidavit himself or present for the consideration of the court the affidavit of his client. And he has failed to put anything whatever in the record showing that he acted as attorney for Steele in procuring his discharge from custody or anything showing that he has not been paid. He has also failed to make any claim, so far as the record shows, for his lien. The record does not indicate that any notice of lien or claim of any kind on the part of the attorney has been presented against Steele's judgment, and we are also not informed whether it was Walker or some other attorney who represented Steele on his motion to be discharged. If the necessary information appeared in the opposing affidavits it would, perhaps, be sufficient, but the record is absolutely barren of all the basic facts necessary for the application of the provisions of section 475 of the Judiciary Law. Therefore, these simple facts alone are presented to us: Ross and Shea have a judgment for $171.62 against Steele, and Steele has a judgment for $63.22 against Ross and Shea. Unless we are at liberty to assume the facts which the record has failed to supply, we cannot order the enforcement of the attorney's lien. Such an assumption we cannot make; neither could the court below. This being so, it was the duty of the county judge to offset the Ross and Shea judgment against Steele's judgment. Therefore, his order should be affirmed.
All concurred.
Order affirmed, with ten dollars costs and disbursements.