Kleiger v. McMahon

S.D. New York

Kleiger v. McMahon

128 F. Supp. 741, 47 A.F.T.R. (P-H) 154, 1954 U.S. Dist. LEXIS 2328

DecidedNovember 16, 1954

StatusPublished

This text of 128 F. Supp. 741 (Kleiger v. McMahon) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Kleiger v. McMahon, 128 F. Supp. 741, 47 A.F.T.R. (P-H) 154, 1954 U.S. Dist. LEXIS 2328 (S.D.N.Y. 1954).

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Opinion

WALSH, District Judge.

Plaintiffs, as certified public accountants, by this action have attempted to recover $1,258.07 from the government as assignees of a refund for overpayment of taxes allegedly due their client. The government’s motion for summary judgment based upon its counterclaim against the assignor is granted.

Plaintiffs’ claim that they were retained on a contingent fee basis to prosecute the claim for this refund and that the amount of their fee was to be fixed later. They also claim that the amount in question, which is the full amount recovered from the government, was assigned to them by a writing executed after recovery and before payment by the government.

The latter assignment fails to conform with the requirements of the statute because it was not properly witnessed. The earlier alleged retainer which did not fix the amount or percentage of the fee could not sustain an assignment of the entire recovery. Whether it established an equitable lien enforceable against the government as well as against the assignor for some lesser amount would require the reconciliation of Nutt v. Knut, 200 U.S. 12, 20, 26 S.Ct. 216, 50 L.Ed. 348; Calhoun v. Massie, 253 U.S. 170, 175, 40 S.Ct. 474, 64 L.Ed. 843; Wardman v. Leopold, 66 App.D.C. 111, 85 F.2d 277, 281, 106 A.L.R. 1487; Malman v. U. S., 2 Cir., 202 F.2d 483, 484; Brooks v. Mandel-Witte Co., 2 Cir., 54 F.2d 992, 995, and need not now be considered.

Regardless of the effect of this-alleged retainer, the government concededly has a setoff against the refund in question based upon other claims against plaintiffs’ assignor. This setoff is superior to the rights of the plaintiffs as assignees or equitable lienors. Ozanic v. U. S., 2 Cir., 188 F.2d 228; Malman v. U. S., 2 Cir., 207 F.2d 897.

Claim dismissed.

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WALSH, District Judge.

Plaintiffs, as certified public accountants, by this action have attempted to recover $1,258.07 from the government as assignees of a refund for overpayment of taxes allegedly due their client. The government’s motion for summary judgment based upon its counterclaim against the assignor is granted.

Plaintiffs’ claim that they were retained on a contingent fee basis to prosecute the claim for this refund and that the amount of their fee was to be fixed later. They also claim that the amount in question, which is the full amount recovered from the government, was assigned to them by a writing executed after recovery and before payment by the government.

The latter assignment fails to conform with the requirements of the statute because it was not properly witnessed. The earlier alleged retainer which did not fix the amount or percentage of the fee could not sustain an assignment of the entire recovery. Whether it established an equitable lien enforceable against the government as well as against the assignor for some lesser amount would require the reconciliation of Nutt v. Knut, 200 U.S. 12, 20, 26 S.Ct. 216, 50 L.Ed. 348; Calhoun v. Massie, 253 U.S. 170, 175, 40 S.Ct. 474, 64 L.Ed. 843; Wardman v. Leopold, 66 App.D.C. 111, 85 F.2d 277, 281, 106 A.L.R. 1487; Malman v. U. S., 2 Cir., 202 F.2d 483, 484; Brooks v. Mandel-Witte Co., 2 Cir., 54 F.2d 992, 995, and need not now be considered.

Regardless of the effect of this-alleged retainer, the government concededly has a setoff against the refund in question based upon other claims against plaintiffs’ assignor. This setoff is superior to the rights of the plaintiffs as assignees or equitable lienors. Ozanic v. U. S., 2 Cir., 188 F.2d 228; Malman v. U. S., 2 Cir., 207 F.2d 897.

Claim dismissed.

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Bluebook (online)

128 F. Supp. 741, 47 A.F.T.R. (P-H) 154, 1954 U.S. Dist. LEXIS 2328, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kleiger-v-mcmahon-nysd-1954.

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