Estate of Blanck, deceased.

SURROGATE'S COURT.

In the estate of AARON P. BLANCK, deceased.

Guardian Of infant-When entitled to letters of administration — Code of Civil Procedure, section 2643.

Where an infant would be entitled, but for his infancy, to letters of admin. istration with the will annexed, the guardian of such infant is entitled to letters unless disqualified for some cause specified in the statute.

New York County, January, 1886.

ROLLINS, S―This testator died in 1873, leaving him surviving his widow Elizabeth and his son Aaron. To the former he gave by his will the rents, interest, &c., of all his estate, real and personal, subject to certain qualifications not necessary to be here indicated. He provided that, in case she should remarry, the estate should be converted into money, whereof she should receive one-third and his son two-thirds; in case she should remain his widow during her life, he directed that, upon her death, the residue of the estate should go to his son Aaron, if living, and, if not, to such of Aaron's lawful children as might be then alive.

The testator's widow is now 73 years of age. His son Aaron lately died, leaving him surviving his wife Emma (since married and now Mrs. Morrison) and two children, minors then and still, of whom their mother is guardian. As such guardian she asks to be appointed administratrix c. t. a. of this estate, which, because of the death of one of the executors and the resignation of the other, is now without any legal representative.

The testator's widow has herself renounced any claim to letters, but she opposes Mrs. Morrison's application upon grounds which would strongly appeal to my discretion if I were at liberty to exercise it. It has been repeatedly held, however, by our courts, that letters of administration must be granted to an applicant who is preferentially entitled under the statute, unless

Place agt. Hayward.

he is disqualified for some cause that the statute specifies (O'Brien agt. Neubert, 3 Dem., 156; Coope agt. Lowerre, 1 Barb. Ch., 45; McMahon agt. Harrison, 6 N. Y., 443; McGregor agt. McGregor, 1 Keyes, 133; Emerson v. Bowers, 14 N. Y., 449).

In the case at bar Mrs. Morrison, as guardian of her children, who are legatees under their grandfather's will, is clearly entitled to letters.

It is provided by section 2643 of the Code of Civil Procedure that, upon due application, the surrogate "must" grant administration as follows: 1st, to one or more of the residuary legatees, and 2d, to one or more of the principal or specific legatees "who are qualified to act as administrators."

By section 33, title 2, chapter 6, part 2, Revised Statutes (3 Banks [7th ed.], 2291), it is declared that, "if any person who would otherwise be entitled to letters of administration with the will annexed, as residuary or specific legatee, shall be a minor, such letters shall be granted to his guardian, being in all respects competent, in preference to creditors or other persons."

NEW YORK SUPERIOR COURT.

BARKER PLACE, executor, &c., agt. JEDEDIAH K. HAYWARD.

Attorney's lien on costs-Code of Civil Procedure, section 779.

An attorney has a lien on motion costs ordered in favor of his client, and as equitable assignee thereof, which lien attaches the instant the costs are due. Where an order was made at special term, on motion of counsel for defendant, "that an allowance of $500 is granted to the defendant against the plaintiff, as executor, together with the costs of this action, costs and allowance not to be paid by plaintiff personally"; and on defendant's motion this order was reconsidered and reaffirmed and this decision was sustained by the general term, the defendant appealing to the court of appeals who dismissed the defendant's appeal, with $116.02 costs to the plaintiff.

Held, that the costs allowed to this plaintiff are motion costs and cannot be offset against any costs in the action due by the plaintiff to the defend

Place agt. Hayward.

ant. That the plaintiff cannot pay the defendant out of money which legally belongs to the plaintiff's attorney, and that these costs are collectable from the defendant under section 779 of the Code of Civil Procedure.

Special Term, December, 1885.

Charles F. Wells, for plaintiff

Josiah Fletcher, for defendant.

O'GORMAN, J.-At the special term of this court an order was made on April 16, 1884, on motion of counsel for defendant, "that an allowance of $500 is granted to the defendant against the plaintiff, as executor, together with the costs of this action, costs and allowance not to be paid by plaintiff personally."

On defendant's motion this order was reconsidered and reaffirmed, and this decision was sustained by the general term.

The defendant appealed to the court of appeals, who, on November 2, 1885, dismissed the defendant's appeal, with $116.02 costs to the plaintiff.

Defendant now moves for leave to amend the judgment in his favor for said allowance and costs so that the amount thereof be reduced by offsetting against it pro tanto the $116.02 costs of appeal allowed to the plaintiff.

The plaintiff's counsel, on the other hand, contends that these costs of appeal are the property of the attorney for the plaintiff, and are not subject to any offset in favor of the plaintiff himself. In support of this proposition he cites (Tunstall agt. Winton, 31 Hun, 220 [December, 1883, affirmed by Court of Appeals, 92 N. Y., 646]; Marshall agt. Meech, 51 N. Y., 143; Naylor agt. Lane, 50 Super. Ct. R., 97; Re Knapp, 85 N. Y., 298; Ward agt Craig, 87 N. Y., 559; Lachemeyer agt. Lachemeyer, 17 Week Dig., 310).

The defendant relies on (Garner agt. Gladwin, 12 Week. Dig., 9 [Supreme Court, General Term, March, 1881]; Hoyt agt Godfrey, 5 Civ. Pro. R., 118 [Common Pleas Court, General Term, November, 1882]; Catlin agt. Adirondack Co., 22 Hun, 496)

Lablache agt. Kirkpatrick et al.

I have examined these decisions and in my opinion the weight of authority favors the conclusion that the attorney has a lien on motion costs ordered in favor of his client, and as equitable assignee thereof, which lien attaches the instant the costs are due. That the costs in this case are motion costs. That they cannot be offset against any costs in the action due by the plaintiff to the defendant. That the plaintiff cannot pay the defendant out of money which legally belongs to the plaintiff's attorney. And that these costs are collectible from the defendant under section 779 of the Code of Civil Procedure.

The defendant's motion is, therefore, denied, with ten dollars

costs.

CITY COURT OF NEW YORK.

EMILIA LABLACHE, plaintiff and respondent, agt. JOHN KIRKPATRICK et al., defendants and appellants.

Justice's court- Costs-On recovery for less than fifty dollars, where independ ent counter-claims are interposed and extinguished-Code of Civil Procedure, sections 2863-3228.

The plaintiff sued for $333.33, and the court found that the plaintiff was entitled to recover this sum, but the recovery was reduced by independent counter-claims to $5.20:

Held, that as the sum total of the accounts of both parties, proved to the satisfaction of the court, exceeded $400, a justice's court would not have had jurisdiction of the action, and for this reason the plaintiff was entitled to full costs.

General Term, December, 1885.

APPEAL from an order made at special term denying an application to set aside the taxation of the plaintiff's costs and denying a motion made by the defendants for a direction to tax costs in their favor.

Arnoux, Rich and Woodford, for defendants and appellants

Lablache agt, Kirkpatrick et al.

Olin, Rives and Montgomery, for plaintiff and defendant.

MCADAM, C. J.-The action was commenced to recover $333 damages upon an undertaking executed by the defendants upon the granting of an injunction in the supreme court of the city of New York in an action wherein the plaintiff herein was the defendant. The defendants herein were the sureties upon said undertaking. It was in the sum of $500, and was conditioned that the plaintiff in that action would pay to the defendant therein (plaintiff here) any damages she might sustain by reason of the injunction, if the court finally decided that the plaintiff in that action was not entitled thereto; such damages to be ascertained and determined by the court or by a referee appointed by the court, or by a writ of inquiry or otherwise, as the court might direct.

The damages were ascertained by the superior court in one of the forms contemplated by the undertaking, and the damages were fixed at $333.33, the amount claimed in the complaint herein, and this action is brought to recover the amount so ascertained and determined. The defense relied upon was a counter-claim against the plaintiff on two judgments, which were assigned to the defendants before suit brought. Upon the trial the plaintiff was allowed the amount of her damages, with interest, aggregating $349.26, and the defendants were allowed the amount due upon the judgments, with interest, aggregating $344.06, and for the balance due, $5.20, the court awarded judgment in favor of the plaintiff.

The plaintiff and defendants claimed costs. The clerk taxed the bill presented by the plaintiff, and declined to tax the bill presented by the defendants, and from an order made at special term declining to set aside the taxation in favor of the plaintiff and refusing to direct the clerk to tax costs in favor of the defendants, the present appeal is taken. The question presented, therefore, is, which of the parties litigant, plaintiff or defendant, is entitled to the costs Ordinarily a plaintiff recov ering less than fifty dollars cannot recover costs, but must pay