Robbins v. Alexander

11 How. Pr. 100

• Court: New York Supreme Court
• Decided: March 15, 1855
• Status: Published

Opinion

Mitchell, Justice.

The affidavit of Mr. Bowley, the plaintiff’s attorney, and of Henry A. Robbins, one of the plaintiffs, are positive, that by arrangement between the plaintiffs and their attorney, before the suits were commenced, the costs to be recovered were to belong to the attorney. Mr. Bowley also swears, that after judgment was obtained, and before he went abroad, he told the defendant, I. Alexander, that the costs belonged to him alone; and H. A. Robbins swears, that when the release was executed by him to the defendant, he stated to the defendant that the attorney was absent, and he did not know the amount of his costs, and could not settle with the defendant as to them.

The defendant denies that Mr. Bowley ever told him this, or that Mr. Robbins made such a statement; but the burden of proof is against him.

The release, as it is called, is under seal, and is a composition signed by the creditors of Alexander, and, among others, by the plaintiffs. The amounts are usually set opposite to the creditors’ names; but no amount is set opposite to the plaintiffs’ signatures, except one in lead-pencil, which, it was admitted, was placed there after the release was executed.

The judgments were for $380.66 and $379.12, including in the two $209.67 for costs.

The plaintiffs’ attorney has issued executions, directing the sheriff to levy for his costs only, and the defendant moves to set aside the executions.

The release is, in fact, a covenant not to sue or molest the defendant, he agreeing to pay ten per cent., and is by each creditor, “ for any debt, claim, or demand now due or owing to us, or any of us, his creditors.”

The agreement between the plaintiffs and their attorney, that he should have the costs in the suit, as his recompense for his labor, and the communication to the defendant, that the costs belonged to the attorney, and the refusal of the plaintiffs, when compromising, to settle as to those costs, were a severance of the costs from the rest of the debt recovered by the judgments, so that the plaintiffs’ attorney owned the costs, and the plaintiffs the rest of the debt only.

The covenant of the plaintiffs, not to sue for any debt, claim," or demand due or owing to them, did not, under these circumstances, include the costs which thus belonged to their attorney, and not to them.

. The motion to set aside the executions is denied without costs, and without prejudice to the defendants moving for a re-taxation of the costs.

He says, the judgment was obtained by default without a trial. If by that is meant, without the cause being on the calendar for trial, and it be true, there must be a great error in the costs.