Opinion
October, 1898.
C.H. Winsor for motion.
Ezra A. Tuttle opposed.
This is a motion by the plaintiff to compel her attorney to pay to her $477, the costs and allowance recovered in this action. The action was for damages for the negligent killing of the plaintiff's husband. The judgment against the defendant was for $7,500 damages, $102 costs exclusive of disbursements, and an extra allowance of $375. The plaintiff retained her attorney by a written agreement that he was to be paid 30 per cent. of the "amount recovered", but nothing if he failed "to collect damages." The attorney paid to the plaintiff 70 per cent. of the damages, and retained 30 per cent. and the costs and allowance.
It is said in Matter of Bailey (31 Hun, 608) that a judgment "consisting exclusively of costs is for all ordinary legal purposes the property of the attorney." This seems rather inexact language for use in a science. For extraordinary "legal purposes" (whatever that means) such costs do not belong to the attorney, it would seem, but only for "ordinary legal purposes" (whatever that means). In Delaney v. Miller (84 Hun, 244) it is declared that "it is well settled that the costs recovered in an action belong to the attorney." But there seems to be no such rule. Both of these cases are at variance with the cases they cite, and all of the cases, and are manifestly founded upon a failure to distinguish between ownership and lien. The party owns the costs, and his attorney has a lien thereon for his unpaid services. When he is paid his lien ceases. Nor are the taxable costs the measure of his compensation. He may be entitled to less or more than the taxable costs (Starin v. Mayor, 106 N.Y. p. 87). Here the compensation of the attorney was fixed by agreement, and he can claim no more. The amount agreed upon included everything he was entitled to, and he has no lien beyond that. But the plaintiff is not entitled to all of the costs and allowance, but only to 70 per cent. They are part of the "amount recovered".
Motion granted accordingly.