(165 App. Div. 683)

#### In re STEELE.

(No. 300/5.)

(Supreme Court, Appellate Division, Third Department.

January 6, 1915.)

1. ATTORNEY AND CLIENT (~ 182*)-ATToRNEY's LIEN-JUDGMENT TON COSTS.

The fact that costs taxed in a case belong to the client, and not to the attorney, does not affect the attorney's lien on the judgment for costs.

[ Ed. Note.-For other cases, see Attorney and Client, Cent. Dig. §~ 315, 399-406; Dec. Dig. § 182.°]

2. JUDGMENT (~ 883~)-SET-Orv OP JUDGMENTs-ATTORNEY'S LIEN.

Where R. recovered a judgment for trespass against S., and, body execution having been issued, S. was incarcerated, after which he applied for discharge from imprisonment, and was discharged, and the order affirmed by the Appellate Division, with costs against R., he was entitled to have the judgment for costs set off against his judgment against s., in the absence of any claim or showing on the part of the latter's attorney that he was entitled to enforce an attorney's lien on the judgment for costs.

[ BId. Note.-For other cases, see Judgment, Oent. Dig. §~ 16G9-1688; Dec. Dig. § 883C]

Appeal from Saratoga County Court.

App'lication of Harvey Steele, an imprisoned debtor, to be dis~ charged. From an order of the Saratoga County Court, offsetting judgments held by the respective parties against each other, Steele appeals.

Affirmed.

See, also, 158 App. Div. 894, 142 N. Y. Supp. 1146.

*82Argued before SMITH, P. J., and KELLOGG, LYON, HOWARD, and WOODWARD, JJ.

Tibbitts Walker, of Corinth, for appellant.

Slade, Harrington & Goldsmith, of Saratoga Springs (Irving I. Goldsmith, of Saratoga Springs, of counsel), for respondent.

*

 For other cases see earns topic & § ~Va1]3EB in Dec. & Am. Digs. 1907 to date, & Rep'r Indexe

HOWARD, J.

A judgment was rendered in the Supreme Court in an action for trespass for the sum of $171.62 in favor of Marion Ross and Nancy Shea and against Harvey Steele. An execution was issued to the sheriff of Saratoga county upon this judgment, but it was returned unsatisfied, and subsequently an execution against the person of Harvey Steele was issued, and he was taken into custody and confined in the Saratoga county jail. Subsequently Steele made an application under the Debtor and Creditor Law to be discharged from imprisonment, and he was discharged. An appeal to the Appellate Division from the order discharging him was taken by Marion Ross and Nancy Shea, but the order of discharge was affirmed, with costs, amounting to $63.22, in favor of Steele. An application was made by Ross and Shea to the Saratoga County Court to have the judgment for costs, obtained by Steele, offset and credited upon the judgment previously obtained by Ross and Shea against Steele. This motion was granted, and from that order an appeal is taken to this court.

[1] Under section 475 of the Judiciary Law (Consol. Laws, c. 30), and under numerous decisions of the courts construing section 66 of the Code of Civil Procedure (the statute on this subject which' preceded section 475 of the Judiciary Law), the attorney for Steele, on the appeal from the order discharging him from custody, undoubtedly has a lien on this judgment of $63.22 for costs. The County Judge in his memorandum based his determination upon the proposition that the costs belong- to the client, and not to the attorney. This is the law, but it in no manner affects the attorney’s lien upon the judgment for costs. Matter of Regan, 167 N. Y. 338, 60 N. E. 658; Agricultural Insurance Co. v. Smith, 112 App. Div. 840, 98 N. Y. Supp. 347; Barry v. Third Ave. R. R. Co., 87 App. Div. 543, 84 N. Y. Supp. 830]

[2] convincing authorities and the plain language of the statute would require us to reverse the order of the County Judge, were the record sufficient to form a basis for such action. It seems to us, however, to be wholly insufficient. Walker, the attorney for the appellant, has failed to make an affidavit himself, or present for the consideration of the court the affidavit of his client. And he has failed to put anything whatever in the record showing that he acted as attorney for Steele in procuring his discharge from custody, or anything showing that he has not been paid. He has also failed to make, any claim, so far as the record shows, for his lien. The record does not indicate that any notice of lien or claim of any kind on the part of the attorney has been presented against Steele’s judgment, and we are also not informed whether it was Walker, or some other attorney, who represented Steele on his motion to be discharged. If the nec-es*83sary information appeared in the opposing affidavits, it would, perhaps, be sufficient; but the record is absolutely barren of all the basic facts necessary for the application of the provisions of section 475 of the Judiciary Law.

Therefore these simple facts alone are presented to us: Ross and Shea have a judgment for $171.62 against Steele, and Steele has a judgment for $63.22 against Ross and Shea. Unless we are at liberty to assume the facts which the record has failed to supply, we cannot order the enforcement of the attorney’s lien. Such an assumption we cannot make; neither could the court below. This being so, it was the duty of the County Judge to offset the Ross and Shea judgment against Steele’s judgment. Therefore his order should be affirmed.

Order affirmed, with $10 costs and disbursements. All concur.