99 v. Vanderbilt, 1 Abb. Pr. 193

99 v. Vanderbilt

1 Abb. Pr. 193 | N.Y. Sup. Ct. | 1855

The following opinions were rendered in the Supreme and’ Superior courts upon granting the order.

SUPREME COURT.

Mitchell, J.

J.(After stating the-facts upon which the application was based). The right of the, court to compel an attorney of the court to exhibit his authority to sue, arises from the control which it exercises over all its process and proceedings, and over its officers in order to. prevent abuse. It arises from no statute, but emanates from the breast of the court, and from its desire to cause justice to. be done; and as it emanates from the court, so it is to be exercised only on such terms and conditions, and in such, manner as the court shall perceive will contribute to justice, between the parties. The defendant cannot insist on its exercise as an absolute right, without submitting to such terms as. the court may impose. He cannot insist that the action be dismissed because the power is not produced, nor that it be stayed forever unless it be produced, but in all cases must ask for the exercise of the discretion of the court, and submit accordingly to such terms as the court may choose to impose as a condition of its exercise of such discretion.

There is reason to believe that the plaintiffs’ attorney has no knowledge of the plaintiffs in this action, that he nos never seen them, and has never had any authority from them to sue except such as was given to Mead & Co. What the extent of' that authority was, is left quite uncertain. Mead & Co. do not state even its substance; although it is burnt, they can state, and should state, according to their best recollection and their best means of obtaining information, in what precise words it was written. Then the court can judge whether it *197-was an authority to sue merely for the consideration money paid for the passage from San Juan del Sur to San Francisco, or for that and also for the loss and injury to the plaintiffs, •caused by the delay to which they were subjected and for the inadequate food and accommodations. These last grievances were personal to the passenger's and probably could not be assigned—the first admitted of being assigned. The possession ■ of the tickets by Mead & Co. leads to the presumption that • they received the tickets (as the defendant alleges) in payment -of passages furnished by them in their brig to the passengers, and under a verbal authority to recover from whoever was liable the amount paid for such tickets. Thus far Mead & Co. show a prima facie authority to sue in that limited way, and if they chose to confine their actions to such a claim there is no reason'for staying their proceedings. The defendant shows no defence to the action, but alleges facts from which it is to be inferred that he held himself out to passengers as furnishing to them tickets which would carry them through the whole distance from New York to San Francisco, and that representation he should make good; and if Mead & Co., to save his honor, have forwarded passengers whom he contracted to forward, but by accident could not forward, he should without delay fully reimburse them, at least all that he received for the tickets for the part of' the voyage which they completed in his place. Yet he has allowed more than three years to elapse and has not yet paid the money thus spent by Mead & Co. for his benefit and for the sustaining of his honor as a merchant. He therefore should submit to such terms as justice will require, and as will prevent the power of the court to stay the plaintiffs’ proceedings from being abused. The power originates from a desire to prevent abuse on one side, and must be exercised with such limitations as will prevent abuse on the other side. He seems to consider it a defence that the S. S. Lewis left so shortly before these passengers left New York, that they ought to have known that they could not go by it. ‘ This would show that he knew they could not go by it, and so that he contracted to do what he knew he could not do—but the passengers canot be presumed to know any such matters.

There is no fraud imputable to Mead & Co., or their attor*198nev, but their affidavits do not show with certainty whether the instrument executed to them was an assignment or a mere power of attorney, nor what the extent of the power was, and until that be shown they should not be allowed to use file-names of these plaintiffs. If it is a mere power to sue on the ticket, they have no right to retain all the counts contained in these complaints; and then they have no power to sue even in their own names .for the passengers who are dead, for the power would cease at the death of the constituent. If it is an assignment with a power, the power survives—but under our Code the suit would necessarily be in the name of the assignee,, and be confined to such matters as could pass by assignment.. For these reasons the very words of the instrument containing-the power should be stated as nearly as practicable.

The court would not attempt in this interlocutory proceeding to prevent the Meads from suing in their own name for any cause of action, nor from suing in the names of the plaintiffs for any thing which the plaintiffs have authorized them to sue-for—but it has the same right to compel them to show their authority for using a third party’s name, which it has to compel an attorney of this court to show it. The attorney is called, on for his authority, and refers to the Meads as his immediate-constituents—that is showing no authority from the plaintiffs,, until the Meads show how far they are authorized by.the plaintiffs to act. If it should appear that the instrument given to-the Meads was an assignment, so that the action should be in their names, the court might impose as a condition of any stay ■that the defendant should stipulate not to raise that as an objection, the court regulating the matter of costs as might be deemed just; it might also require the defendant to admit the facts as to his connection with this line, and require him to expedite the trial of the cause, and to put in an answer promptly, and consent to the issuing of commissions and examine witnesses without prejudice to the present motion and to the order to stay the trial; and also to consent not to object at the trial to a variance between the complaint as alleged and-as it may be proved. One necessity for the numerous counts in the complaint is the uncertainty whether the proof will, show the contract to be to carry from San Juan del Sur to Sam *199Francisco, or directly through all the distance from Flew York to San Francisco, and yet the difference does not affect the rights of the parties, and should not therefore be objected to at the trial. If, as has been intimated, the defendant is ready to do what is just, the whole matter may now, perhaps, be adjusted.

There are other matters moved for as to which it is unnecessary now to pass; the draft of an order for staying proceedings will be submitted to the counsel, that the plaintiffs’ attorney may suggest such conditions as he may deem necessary, and the defendant’s attorney may submit amendments thereto. The stay is to be until the further order of the court, so as to be under the control of the court.

SUPERIOR COURT.

Oaklet, C. J.

(Orally)—A question presented in this case is, how far this Court can control the actions of its attorneys. Upon consideration we have come to the conclusion, both on principle and authority, that we have the power, and that it is our duty, if the case demands it, to order the attorney to disclose the residences and individualities of his clients, who they are and where they are to be found.

The defendant cannot always be aware who are his opponents. It may happen, and in this case it does, that he may be attacked by a number about whom he knows nothing. We think this power is involved in the general powers of the Court over its attorneys. We have therefore made an order,— in concurrence I may remark, with the Judges of the other Courts,—the substance of which is that the attorney by affidavit should disclose formally what he has probably disclosed in effect in the other Courts. The reasons for our decision are more fully stated in an opinion by one of the justices of the Court. The questions as to a stay of proceedings and the right of the plaintiffs to go on with the suit, may be considered hereafter.

Hoffman, J.

(after stating the facts in the case at length.)— 1. The authorities cited are decisive of the right of the court to call for the residences and occupations of the plaintiffs respec*200tively. In Johnson v. Birley, (5 Barn. & Ald., 540), this was done in the case of an assault, where numbers were present, and the defendant could not ascertain on inquiry, who the plaintiff was. The court said that the rule had generally been confined to actions of qui tam and ejectment, because it is only in such cases that the defendant is generally ignorant of the plaintiff or his person. Bayley Justice said that previous to the statute of Westminster, a plaintiff appeared in person, unless he had a special writ authorizing him to appear by attorney. Then the pleadings were ore tenus, and a defendant had the privilege of seeing and knowing who the plaintiff was. After stating some further reasons, he says:—It is necesskry, in order that both parties may have a fair trial, that the information required by this rule should be given. In Worten v. Smith, (6 J. B. Moore, 110), which was an action on the case for a libel by three plaintiffs, a rule was made absolute that the plaintiff give the particulars in writing of the places of residence and occupations of the two other plaintiffs, and in the meantime all further proceedings to be stayed. It was submitted that the knowledge was important to enable the defendant to justify or otherwise to shape his defence. See also McRoeman v. Patrick (4 Howard's Miss. R., 533), and West v. Houston, (3 Harring. 15). The good sense of such a rule is apparent, wherever the justice of the case seems to require its application.

It is here sworn to that several of these nominal plaintiffs are dead, and facts are stated to show that some others are probably so. Again, it is not improbable that Head & Co., of St. Juan del Sur, hold the whole or most of these tickets as ’ beneficial owners or assignees. See affidavit of Thompson and Cross. The defendants are entitled to the names of the plaintiffs and their residences to prove this fact by their own evidence if necessary, and to show that Head & Co. have the right to sue. Again, he has a right to such information in order to enable him to obtain security for costs from nonresidents. And as it appears that many of them were forwarded by Head & Go. from St. Juan del Sur to San Francisco by sailing vessels in 1852, the presumption is strong that some of them are non-residents. The difficulty of complying *201with such a requisition in this case, forms no objection to its being made. We consider that an attorney who sues in a com-t, is bound to know the place of residence and occupation of his client, that it may be disclosed if the rights of the defendant require it. This part of the application must, he granted.

2. The next branch of the motion relates to the exhibition by the attorney of his authority to sue in the names of these numerous plaintiffs. It is true that in general the authority of an attorney is to be presumed from his appearing on the record. And the statute has only expressly provided for the production of his power in cases of ejectment. (2 Rev. Stats. 4 ed. 567, § 12).

But the present case is very peculiar. Upon the affidavit produced by the defendant, it is made out that certainly many of these passage tickets have been transferred to Mead & Co., and are, perhaps, owned by them. The right of action to all such is, it may be assumed, vested in that firm. A single suit, then, in their name, for all such tickets would be the proper and the only action which could be sustained, to such extent as any right of action was assignable. It appears by the affidavits produced by. the plaintiffs’ attorney, since the argument of this motion, and agreed to be used by us, that a power or powers of attorney, were executed by a number of the plaintiffs to Mead & Co., authorizing them to employ attorneys and counsel for the purpose of enforcing their claims. It is alleged that this power has been burnt. It is not alleged that a draft or copy is not in existence, nor that the parties cannot give a satisfactory statement of its general contents. If the draft or copy was directed to the attorney, no doubt the court would ask for its production. The case cannot be varied, where it is an authority to another, to employ the attorney. In various cases the undoubted right of the court to call for an exhibition of the power of an attorney is declared. In a few it is considered as an absolute unqualified right of the defendant. Thus, in Clark v. Holliday, (9 Miss. R., 711), it was held that the court would inquire, whenever requested, into the authority of an attorney to appear. The court in Tennessee recognized the same rule in Gillespie’s case, (3 Yerger, 325). In McAlexan*202der v. Wright, (3 Monroe’s R., 194), it was so far qualified as-to impose upon the defendant the task of showing that his rights might he jeoparded, unless it was observed. The general power was recognized in Allen v. Green, (Bailey's R., S. Car., 448). See also Cantwell v. Merrifee, (2 Pike R., 355), and West v. Houston, (3 Harring., 15). In 5 Halstead, 251, it was held that it was not the proper subject of a plea that, the attorney had no authority to prosecute the suit. The proper mode was by motion to the court to stay proceedings. It seems to be the settled law in England that if a plaintiff questions the attorney’s power to sue for him, and makes an affidavit denying it, nothing but a written authority will suffice. (Maries v. Maries, 23 Eng. Law & Eq. R. 22 ; Allen v. Bone, 4 Beavan, 493). We consider the circumstances of this case as calling upon the court to exercise its power to require the best and most perfect exhibition of the power under which he acts, that can be given, the original authority under which his authority is derived, being lost.

The order will be as follows:

Upon reading and filing the order to show cause herein, and the affidavits of the defendant and William K. Thorne and others, submitted on the part of the defendant, and also the affidavits of William Silliman, Esq. and William H. Mead, submitted on the part of the plaintiffs respectively, and also upon reading the several complaints of the said respective plaintiffs, and on hearing of counsel in behalf of the parties respectively—it is, on motion of Horace F. Clarke, Esq., of counsel for defendant, ordered,

That the attorney for the plaintiff, in the several above entitled causes, furnish in writing and verified by oath, to the attorney for the defendant, the names and present places of residences of the said plaintiffs respectively, in the manner and to the 'extent specified in the order to show cause; that is to say, with the Christian names of the plaintiffs in each of said causes in which such Christian name is not stated in the complaints respectively, and specifying the State, county, town and village where each of the plaintiffs respectively resides, and if they, or any or either of them, reside in a city, then *203giving the street and number of such residence, and also specifying the occupation of the plaintiffs respectively.

. And it is further ordered, that the said attorney for the plaintiffs in the said above entitled suits do also deliver to the attorney for the defendant a sworn copy of the power of attorney under or in pursuance of which the said suits are alleged to be instituted, mentioned in the said affidavit of William H. Mead so read and filed on the behalf of the said plaintiffs upon this motion, and therein stated to have been executed by the said several plaintiffs to the said Mead, if the draft or any copy of the said power of attorney or written authority is in existence, and if not, then that he deliver a statement, verified by oath, of the substantial contents, extent, purport and effect of the same, and of the powers conferred therein, and the consideration expressed therein or upon which the same purported to be given, the interest, if any, thereby given or purported to be given to the said Mead, or to Mead & Co., -and for whose use and bénefit the suits alleged to have been thereby authorized were to be prosecuted, and at whose risk, cost and expense, so far as such particulars or any or either of them were contained in such power of attorney or written authority, and as nearly in the words of the said power as he may' be able to furnish the same, or as may be practicable.

And all proceedings in the said several suits are hereby stayed until the further order of, this court, with leave to'either. party to apply to the court for further or other relief, as he may be advised.