201 A.D. 647, Sherman v. Yankee Products Corp.

Citation:201 A.D. 647
Party Name:ROGER I. SHERMAN, Appellant, v. YANKEE PRODUCTS CORPORATION, Respondent. JOHN M. GARDNER and FAY H. WHITE, Attorneys for the Plaintiff, Appellants.
Case Date:June 09, 1922
Court:New York Supreme Court Appelate Division, Second Department
 
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Page 647

201 A.D. 647

ROGER I. SHERMAN, Appellant,

v.

YANKEE PRODUCTS CORPORATION, Respondent. JOHN M. GARDNER and FAY H. WHITE, Attorneys for the Plaintiff, Appellants.

Supreme Court of New York, Second Department.

June 9, 1922

APPEAL by the plaintiff, Roger I. Sherman, and by his attorneys, individually, from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 17th day of December, 1921, directing said attorneys to pay to the defendant the sum of $500 on deposit with them.

COUNSEL

John M. Gardner, for the appellants.

Allan R. Campbell, for the respondent.

YOUNG, J.:

This action was referred to David Welch, to hear and determine, by order of June 12, 1920. Plaintiff's attorneys now have in their custody $500 deposited with them by the plaintiff. The record before the referee contains the following note upon the subject: 'By the Referee: The plaintiff has placed in the hands of his attorneys a certified check for the sum of five hundred (500) dollars on the Farmers Loan & Trust Company of New York, to secure the expenses and disbursements of the reference.'

The referee decided the case in defendant's favor, and his fees and the stenographer's fees amounting to $1,078 were paid by defendant's attorneys. They thereupon demanded from plaintiff's attorneys the $500 deposited with them as security, but this demand was refused upon the ground that the security was solely

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for the referee's benefit, and that as defendant had voluntarily paid him and he had accepted the same, defendant could not claim it.

Defendant then moved for an order to compel payment, and the court at Special Term granted the motion and made and entered an order directing plaintiff's attorneys to pay defendant, or its attorneys, the $500 deposited with them for the purpose of securing the disbursements and expenses of the reference, and that such payment be applied to reimburse the defendant to the extent thereof for its expenditures for referee's fees. From that order plaintiff and his attorneys appeal to this court.

In my opinion respondent is entitled to this fund under the equitable doctrine of subrogation. In order to secure the report it paid the entire fee. But such payment did not discharge plaintiff's obligation to the referee. It merely operated to...

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