Opinion
March, 1899.
A. Edward Woodruff, for motion.
Geo. Putnam Smith, opposed.
This is a motion to set off a claim, alleged to be due from defendant to the plaintiff, against the costs recovered by the defendant against the plaintiff in an action between the parties, and taxed in the judgment. Assuming that plaintiff's claim is well founded; that the amount stated in the affidavit is actually owing to the plaintiff from the defendant, which does not appear to be conceded by the defendant, still I see no reason for changing the opinion expressed by me upon the application for the order to show cause herein. The costs belong to the attorney, and his claim thereto is superior to the right of the adverse party to set off claims against the successful one. See Bevins v. Albro, 86 Hun, 590; Delaney v. Miller, 84 id. 244; Matter of Bailey, 31 id. 608; Marshall v. Meech, 51 N.Y. 140. This doctrine is contested by the plaintiff, who cites, in support of his contention, the cases of Taylor v. Long Island Railroad Co., 25 Misc. 11; Perry v. Chester, 53 N.Y. 240, and Starin v. Mayor, 106 id. 82. The first is a Special Term decision of the Second Department, and cannot prevail against the decisions of the General Term and of the Court of Appeals above cited, even if it is certain that it, in fact, does bear out plaintiff's claim. I have examined with care the two Court of Appeals decisions cited by the plaintiff, and I do not find that they apply to the case at bar, or disapprove of the doctrine laid down in the General Term decisions above cited. This motion must be denied, with $10 costs to the defendant.
Motion denied, with $10 costs to defendant.