Hoschek v. National Surety Co.

139 Misc. 683, 248 N.Y.S. 203, 1930 N.Y. Misc. LEXIS 1766

Opinion

Per Curiam.

Judgment unanimously modified, upon the law, by striking therefrom the provision allowing the defendant Eva Heim, individually and as administratrix, an offset of $118.17 against the claim of the plaintiff, and by increasing the amount awarded against the National Surety Company and against the administratrix by the sum of $104.99, with interest from January 17, 1928, and, as so modified, judgment affirmed, with costs to appellant against Eva Heim individually. Conclusions of law third, fifth, sixth, seventh, and eighth reversed, and a conclusion of law made in accordance with the foregoing direction. The only question litigated below was as to the right to offset the judgment obtained by Eva Heim, individually, against William J. Heim, against the amount directed to be paid by her as administratrix to the said William J. Heim. The judgment held by her individually could not be used as an offset in her favor as administratrix. (Beecher v. Vogt Mfg. Co., 227 N. Y. 468; Weeks v. O’Brien, 25 App. Div. 206.) Moreover, if such judgment could have been asserted against William J. Heim, plaintiff's lien as an attorney was superior to such claim. There was no dispute that plaintiff rendered services or as to the value thereof. The judgment in favor of Eva Heim was entered July 1, 1925. Plaintiff’s hen attached to the recovery in the Surrogate’s Court under the decree of April 13,1925. (Beecher v. Vogt Mfg. Co., supra; Zogbaum v. Parker, 55 N. Y. 120; Barry v. Third Ave. R. R. Co., 87 App. Div. 543; Smith v. Cayuga Lake Cement Co., 107 id. 524.)

Present, Cropsey, MacCrate and Lewis, JJ.