130 Misc. 269 | N.Y. Sup. Ct. | 1927
This is an application by Clarence R. Watson, an attorney, to withdraw notices of appearance for the defendant served by him upon the plaintiffs’ attorneys. The application comes before the court upon an order to show cause directed to the plaintiffs’ attorneys.
The moving papers show that on April 16, 1927, while the defendant was enroute by automobile from Glens Falls, N. Y., to Guitaneau, Can., where he was under an engagement for employment, his automobile collided with an automobile owned by the plaintiff Grace Bailey, and operated by her minor son, the plaintiff Kenneth Bailey. The accident occurred around four-thirty o’clock in the afternoon about one and one-quarter miles north of the village of Schroon Lake, N. Y. The operators of both cars were arrested by New York State troopers who were patrolling
It appears that the defendant held a standard casualty policy of insurance issued to him by the New York Indemnity Company, a New York corporation, undertaking to protect him from liability to a stranger, arising from negligence in the operation of an automobile. This contract of insurance, among other provisions, contained the following:
“ Notice of accidents
“ D. Upon the occurrence of an accident involving bodily injuries or death, or damage to property of others, the Assured shall give prompt written notice thereof with the fullest information obtainable at the time to the New York Office of the Company or to one of its duly authorized agents. The Assured shall. give like notice with full particulars of any claim made on account of such accident. If suit is brought against the assured to enforce such claim the assured shall promptly forward to the New York Office of the Company every summons or other process that may be served upon the assured.”
“ Cooperation of Assured
“ F. In connection with accidents covered by Insuring Agreements 1 and 3, the Assured shall not voluntarily assume any liability nor incur any expense, other than for immediate surgical refief, nor settle any claim, except at the Assured’s own cost. The Assured shall not interfere in any negotiation for settlement, nor in any legal proceeding; but, whenever, requested by the CompaDy, and at the Company's expense the Assured shall aid in securing information and evidence and the attendance of witnesses, and shall co-operate with the Company (except in a pecuniary way) in all matters which the Company deems necessary in the defense of any suit or in the prosecution of any appeal.”
On June thirteenth plaintiffs’ attorneys sent to the defendant by mail a letter addressed to his Glens Falls residence, requesting information as to the insurance coverage on defendant’s car. On June seventeenth, for the first time, defendant wrote from Guitaneau, Can., to the Hitchcock-Barrow Agency at Glens Falls, agents for the insurance carrier, hereafter called the company, advising of the accident and giving the time and place thereof. On June twenty-first, some nine and one-half weeks after the occurrence of the accident, the company received notice of the accident on
Complaints in the actions were received by Attorney Watson tMough the mail from plaintiffs’ attorneys on July twenty-seventh. He then sent to the Schenectady office for the file in the cases and, after an examination of the same, he became acquainted for the first time with the alleged delayed notice of accident and lack of co-operation by the defendant and with the action of the company in notifying defendant of the reservation of its right to disclaim liability under the policy. Applicant then determined to deny liability on behalf of the company and on July thirtieth sent notice to tMs effect by registered mail to the defendant at Gmtaneau, Can., and further advised Mm that the company had instructed him “ to withdraw Ms appearance (in these cases) due to reasons of controversies between said defendant and it.” At the same time, with a notice of similar import, applicant returned the copies of the summons and complaints in both actions to plaintiffs’ attorneys. On August eighth these papers were returned
This motion presents an unusual situation. Applicant is under retainer from the company to defend actions instituted against its assured. For that reason he served notices of retainer by the defendant in these actions. He now wishes to withdraw his appearance in both cases because he believes that his appearance therein might be construed as a waiver of the company’s right to disclaim liability. The company is not a party to these actions, yet it has an interest in the acts of Attorney Watson in this litigation since he is paid by the company for his services and appeared for the defendant on behalf of the company, and his participation in these cases might subject this company to liability upon any judgment recovered therein against the defendant.
The notices of retainer were undoubtedly served through mistake /and misapprehension or ignorance of the facts on the part of Attorney Watson. As soon as he learned the real circumstances of the case from the claim department of the company, he took immediate steps to disclaim liability on behalf of the company and to withdraw his notices of appearance. Upon the refusal of plaintiffs’ attorneys to permit him to withdraw his appearance, he applied to this court for relief.
The motion is addressed to the discretion of the court (Becker v. Lamont, 13 How. Pr. 23), and I do not hesitate to recognize Attorney Watson’s plea to be freed from further participation in these actions. If his client, the company, is correct in its decision that defendant has breached his contract with the company by failure to give timely notice of the accident and to properly co-operate in the defense of these actions, and the subsequent acts of the company do not constitute a waiver, then there is no obligation upon the part of the company and Attorney Watson to defend these cases. But the request here is for leave to withdraw the notices of appearance filed therein. I do not think that the applicant is entitled to such relief upon this motion. In the cases under consideration there was not due service of process upon the defendant and any jurisdiction that the court has acquired over the defendant is dependent upon the notices of retainer served upon plaintiffs’ attorneys by applicant. (Reed v. Chilson, 142 N. Y. 152.) The moving
I do not know of any case where notice of appearance has been allowed to be withdrawn upon application of the attorney where there was not satisfactory evidence presented that the appearance was unauthorized. To permit Attorney Watson to withdraw his appearance in these actions might deprive the court of jurisdiction of the defendant when there is nothing in the proceedings before the court to indicate that the defendant did not intend to submit to the jurisdiction of the court.
The applicant, if he so desires, may have an order, as of the date of his application to the court, to withdraw as attorney from further participation in both actions. The relief requested, however, to withdraw notices of appearance, is denied without prejudice to the defendant.
Motion denied, without prejudice to the defendant. No costs.
Submit order.