Goldsmith agt. Union Mutual Life Insurance Company.

use and benefit of his wife, Lina Goldsmith, but in case of her previous death to revert to the insured." The plaintiff paid with his own funds the sum necessary to meet the premiums on the policies, and continued such payments thereafter down to the time he obtained a decree of divorce dissolving the marriage bond, on account of the adultery of his wife. He has always held the policies in his possession. The plaintiff's wife knew of these policies after they were issued.

The plaintiff brings this action to obtain a reformation of these policies. In his complaint he asks that they be reformed by inserting therein a provision to the effect "that in case the said Lina Goldsmith should cease to be the wife of the plaintiff during his lifetime, and the marriage between her and the plaintiff should be dissolved by reason of her adultery, then and in such case the benefit of the policies should revert to the said plaintiff."

The plaintiff alleges in his complaint that it was not his intention, in taking out such policies, to contract with the defendant company that any loss which might accrue thereon should be paid to the said Lina Manly, unless she should be his wife at the time of his death, but that through the mutual mistake and inadvertence on his part and that of the company their common intention in that regard was not fully expressed.

Whatever may have been the intention of the plaintiff in this regard, it cannot avail him to effect his present purpose, unless it was stated to the company when the policies were agreed to be issued. An undisclosed intention is no intention in this connection. There is no claim of fraud. The ground upon which this relief is asked is that of a mistake. To justify a reformation the mistake must be mutual. The divorce from his wife cannot authorize or enable the court to change the conditions and terms of these policies, unless through a mutual mistake the intention of both parties have failed of expression. A mistake on one side is not enough. The applications of the plaintiff in writing, made to the company, VOL. II 5

Goldsmith agt. Union Mutual Life Insurance Company.

do not express any such intention. The evidence adduced upon the trial does not show that he disclosed to the agent of the company, at the time he made his application for the policies, the intention which he now alleges was then in his mind. His directions, he says, were "general," and the language was formulated by the agent.

As the plaintiff accepted these policies at the time they were issued, and has had them in his possession for many years without objection, they are presumed in law to express his intentions. If for any reason he believed them to be wrong, he should have declined to pay the premiums upon them year after year. Such voluntary payments are an adoption of the terms of the policies as issued.

Nor is it at all probable that the idea that his wife, for whose benefit he was insuring his life, would, through a criminal act, forfeit all claims upon him as a husband was present to his mind. If plaintiff had supposed that she might become so guilty it is not likely that he would have insured his life for her sole advantage.

The husband of a divorced wife can omit to pay the premiums on any insurance he may have taken for her benefit, and thus end his obligation under the policy. He cannot be obliged to keep it alive for one who has forfeited all claim upon him. He might thereafter regard it in the light of a wager policy. It is not necessary to determine the effect of the decree of divorce upon the rights of the divorced wife under the policies. A decree of divorce would not disturb vested rights or executed gifts and contracts. I do not say that these policies are in the category of such rights or interests.

All that it is now necessary to decide is that there is no such evidence of mutual mistake as will justify the court in changing the terms and conditions of these policies in the manner in which we are asked to do.

The construction of the contracts, and the rights of the parties thereunder, and the effect of the decree of divorce

Turno agt. Parks et al.

upon those rights, will be determined when a claim is legally made under them at the time the insurance is payable.

For these reasons the plaintiff's complaint must be dismissed.

As to the defendant, Lina Manly, the dismissal is without costs. As to the company, I will hear the counsel on the subject of costs.

NEW YORK CITY COURT.

CHARLES TURNO, Jr., agt. CHARLES T. PARKS et al.

Judgment-Set-off-Effect of prior assignment of judgment-Attorney's lien.

The taxable costs in an action are not subject to set-off.

An attorney has a lien for his services in a particular case, as a mechanic would upon the product of his labor, and equity intervenes to save it for him, but this lien would ordinarily be measured by his taxable costs, but might embrace a further fee, and will not always be limited to such costs if a special contract had been made in good faith between the client and his attorney, but, it seems, it must refer to his services in the particular action.

Where prior to the recovery of the judgment the plaintiff assigned to his attorney herein all his interest in the cause of action in payment for services in the suit of Parks agt. Turno, and also for money loaned, and the attorney held this assignment prior to the recovery of judgment, and due notice was given the defendants:

Held, that the equity of the attorney is superior to that of the plaintiff, and no right of set-off exists.

Special Term, April, 1885.

HAWES, J.-It seems quite difficult to determine the present rule of law governing this case. Whether a judgment for costs, or so much of it as may embrace costs, is subject to set-off in case of the insolvency of the party would seem to be questionable, and still more so in a case like the present, where the attorney claims to hold an assignment of the entire claim prior to the recovery. Upon the

Turno agt. Parks et al.

first question the court of common pleas, at general term, in Saunders agt. Gillette (8 Daly, 184), expressly holds that the lien of the attorney is subject to the equitable right of set-off between the parties. It has been since held, however, by the same court that the costs belong to the attorney, and his right to them cannot be taken away by a set-off (See Hilton agt. Sinsheimer, ALLEN, J., Daily Register, March 27, 1885). The superior court, at general term (Naylor agt. Lane, 5 Civil Pro. Rep., 150), declares the lien of the attorney to be an equitable assignment of the judgment to him, and not subject to set-off, and that no notice to the other side is necessary to protect his rights. The supreme court in this depart ment would seem to hold a contrary doctrine in the case of Garner agt. Gladwin (12 Weekly Digest, 10), where it was held that the right to set-off depended upon whether there was or was not an assignment in fact from the party to his attorney. This would clearly seem to negative the proposition that they were not inherently subject to set-off by reason of being costs which the attorney could claim as a matter of legal right.

The court of appeals, in Davidson agt. Alfaro (80 N. Y., 660), declined to pass upon the question, stating that "it does not seem as clear from the decisions as it ought to be how far this right of lien will stand in the way of a set-off sought in an equitable action;" but as the court below recognized this lien, so far as taxable costs are concerned, as not subject to the right of set-off, it is fairly inferable from the context that the court assented to the doctrine there enunciated. The case of Perry agt. Chester (53 N. Y., 241); Zogbaum agt. Parker (55 N. Y., 120), clearly support this view, and I think it must he held that the taxable costs are not subject to set-off. This, of course, does not exist by reason of any legal right, for in law this lien would be disregarded in an action to compel set-off (2 Robt., 670), but is discretionary, as is suggested in Perry agt. Chester (supra), and the courts equitably interfere to protect the attorney's

Turno agt. Parks et al.

interests; but these interests are protected not because the costs belong to the attorney, as is frequently suggested, but because the courts will in equity preserve to the plaintiff or defendant, as the case may be, so much of the judgment as the lien attaches to. It is true that this is for the protection and benefit of the attorney who, as an officer of the court, claims special consideration, but it is purely incidental, and does not arise by reason of any ownership by him of the costs. He doubtless has a lien for his services in this particular case, as a mechanic would upon the product of his labor and equity intervenes to save it for him, but this lien would ordinarily be measured by his taxable costs, although I am inclined to think that it might embrace a further fee, and would not always be limited to such costs if a special contract had been made in good faith between the client and his attorney, but it must, I think, refer to his services in this particular action, and the reason of such distinction would seem to be based upon the analogous principle above referred to. It seems clear, therefore, that the taxable costs of the plaintiff in this action will not be subject to set-off, and to that extent at least the motion will be denied.

It is further claimed, however, by the plaintiff that prior to the recovery of the judgment the plaintiff assigned to his attorney herein all his interests in the cause of action, in payment for services in the suit of Parks agt. Turno, and also for money loaned, and that as the attorney held this assignment prior to the recovery of judgment no right of set-off exists, as the judgment and all its incidents belonged to the attorney, of which due notice was given the defendants herein. There seems to be no question as to the bona fides of this assignment, the consideration was ample and the claim was admittedly assignable. The legal title was in the attorney, and I do not see how it can be defeated, unless exceptional equities exist between the parties. If these existed at the time of the transfer it is clear that they must prevail now, as the assignee held no higher rights than his assignor.