Hover v. Heath

5 Thomp. & Cook 488, 10 N.Y. Sup. Ct. 283

• Court: New York Supreme Court
• Decided: December 15, 1874
• Status: Published

Opinion

Countryman, J.

It is found as a fact, that the money was collected on the judgment in the former suit by the defendant, as attorney, on the 4th day of March, 1871. His services were then completed, and his right to compensation perfect from that period. Adams v. Fort Plain Bank, 36 N. Y. 255. He had a lien for the value of his services upon the moneys which he collected on the judgments. Rooney v. Second Avenue Railroad Co., 18 N. Y. 368. And yet the referee has charged him with the interest on that portion of the money which he was entitled to retain for the services he had performed, from the time he collected it to the date of his report. This cannot be maintained. When the moneys were collected, his employment as attorney terminated, and his claim for services became due, and he was entitled to retain the value thereof out of the moneys in his hands. The defendant is therefore entitled to a deduction of the interest on $680.31, the value of his services and disbursements, from March 4,1871, to April 25, 1874, the date of the report, amounting to $149.48. He was properly charged with interest on the balance in his hands from the time of its receipt. Greenly v. Hopkins, 10 Wend. 97. And he was also properly disallowed interest on the taxable costs or disbursements, until his employment was closed. Mygatt v. Wilcox, 1 Lans. 56.

The exceptions to the report were probably not sufficiently specific to have presented these questions for review in the Court of Appeals. McMahon v. New York & Erie Railroad Co., 20 N. Y. 463, 470. But the right to review is not so limited in the general term.

The judgment must be modified by striking out the sum of $149.48, and as thus modified the judgment must be affirmed, without costs of the appeal to either party.

Judgment affirmed.