Gallison & Hobron Co. v. Rawak

3 N.Y.S. 802, 24 N.Y. St. Rep. 318, 1889 N.Y. Misc. LEXIS 92

• Court: City of New York Municipal Court
• Decided: February 8, 1889
• Status: Published

Opinion

McAdam, C. J

The defendant being in default for want of an answer, the plaintiff’s attorneys have therightto enter judgment for $75, (the amount claimed,) with costs, and enforce it to the extent of the costs. Wood v. Trustees, 7 Abb. Pr. 210, note; Owen v. Mason, 18 How. Pr. 156. If the defendant had appeared, and pleaded the payment, and the plaintiff had proceeded to trial on the issue, the plea would have defeated the action. Rice v. Childs, 28 Hun, 303; Reimer v. Doerge, 61 How. Pr. 142. Upon receiving such a plea, the Plaintiff’s attorneys could have obviated its effect, and protected their lien, by obtaining an order permitting them to prosecute the action for the enforcement of said lien, (Goddard v. Trenbath, 24 Hun, 182; 1 Bliss, Code, 50, note c,) which is in no way affected by the settlement made by the parties, (Code, § 66.) All the plaintiff’s attorneys would have to prove would be a cause of action in their client at the time the suit was commenced. Their lien attached to that, and was not impaired by what the parties themselves did afterwards. ‘The defendant being in default, it will not be opened except on payment of all costs to date, (Dietz v. McCallum, 44 How. Pr. 493,) on payment of which the plaintiff will be permitted to discontinue, without costs. These various provisions of the practice work harmoniously together in aid of the general policy of the law to protect an attorney in his lawful costs whenever he invokes its protection against acts of his client operating or tending to operate to his prejudice. The plaintiff’s attorneys are, therefore, ■clearly entitled to their costs.