(27 App. Div. 123.)

#### In re HAVEMEYER et al.

(Supreme Court, Appellate Division, First Department.

March 11, 1898.)

1. Costs—Right of Set-Off.

A party has no absolute right to have costs awarded in his favor set off against costs awarded against him during the progress of litigation, but such an application is addressed to the equitable discretion of the court, and must bo determined in view of all the equities involved.

2. Same—Assignment to Attorney.

Upon the removal of one H. from the position of executor, costs were awarded against him in favor of the petitioners, and, an execution issued upon the decree having been returned unsatisfied, a motion was made to *127punish him for contempt. The order granting this motion was, after successive appeals, reversed by the court of appeals, with costs to H. in all the courts. Upon a motion by the petitioners to set oft the costs, it appeared that H. had assigned to his attorney, in consideration of services, past and prospective, in the contempt proceeding, all costs that might be awarded on the appeal. *Held,*that the equities of the petitioners were inferior to those of H. and his attorney, and that the motion must be denied.

Appeal from order of surrogate, New York county.

In the matter of the application of Henry Havemeyer and others for the removal of J. Lee Humfreville as executor of Mary J. Havemeyer, deceased. From a refusal of a motion to set off costs awarded to Humfreville against the judgment of costs awarded against him, he appeals. Affirmed.

Argued before VAN BRUNT, P. J., and BARRETT, RUHSEY, McLaughlin, and o’brien, jj.

Henry H. Whitman, for appellant.

Abram Kling, for respondents.

McLAUGHLIN, J.

On the 5th day of May, 1896, a decree was entered in the surrogate’s court of the county of New York revoking letters testamentary theretofore issued to J. Lee Humfreville, with costs, which he was personally directed to pay. The decree was entered by direction of this court, upon appeal from an order of the surrogate denying an application made by the respondents herein to remove Humfreville as executor of the last will and testament of Mary J. Havemeyer, deceased. 38 N. Y. Supp. 292. Thereafter, a certified copy of the decree having been personally served upon Humfreville, and execution issued thereon having been returned unsatisfied, a motion was made (under paragraph 2555, subd. 3, of the Code of Civil Procedure) to punish for contempt. The motion was granted, and an order entered to that effect. From this order Humfreville appealed to the appellate division (46 N. Y. Supp. 439), and from an order of affirmance there he appealed to the court of appeals. The court of appeals reversed the orders of the surrogate and appellate division, with costs to Humfreville in all the courts. 47 N. E. 1086. An order having been entered upon the remittitur of the court of appeals to this effect, a motion was made in the surrogate’s court to set off the costs thus awarded to Humfreville against an equal amount of costs remaining unpaid under the decree above referred to. The motion was denied, and from the order thus entered this appeal is taken.

It appears from the papers used on the motion that Humfreville, prior to the time the motion was made, in consideration of services rendered by his attorney in the contempt proceeding, and services then and thereafter to be rendered on the appeal, had assigned to his attorney all the costs that might be awarded to him on the appeal. He had a legal right to do this. A party can assign to his attorney the prospective costs that may be awarded to him on an appeal in consideration of services thereafter to be rendered. This the court of appeals distinctly held in Perry v. Chester, 53 N. Y. 240. It cannot be said that a party has an absolute right to have *128■costs awarded in liis favor set off against costs awarded against him during the progress of litigation. Applications of this character, when made, are addressed to the equitable discretion of the court (Alexander v. Durkee, 112 N. Y. 655, 19 N. E. 514), and must be determined in view of all the equities involved. Here it cannot be said that the appellants have any equities which are superior, or even equal, to those of the respondent or his attorney. Tunstall v. Winston, 31 Hun, 219; Winton v. Winton (Sup.) 13 N. Y. Supp. 759; Lachenmeyer v. Lachenmeyer, 65 How. Prac. 422; Zogbaum v. Parker, 55 N. Y. 120. The agreement was based upon a good consideration. The parties had a right to make it. The respondent could secure his attorney for services then and thereafter to be rendered in this way.

It follows that the order was properly made; and should be affirmed, with $10 costs and disbursements. All concur.