Berkeley v. Kennedy

72 N.Y.S. 734 | N.Y. App. Div. | 1901

HATCH, J.

The complications which have arisen in this action are many and varied, and the case made by the appellant for relief presents some strong features, which would doubtless lead this court to intervene if it justly might. It is made very clear that either through the misconduct of her attorney, or in consequence of her ignorance of the situation and of lier rights, she has been deprived in some way of her rightful share of the estate of Patrick H. Kennedy, or of her day in court to establish such right, if any. When this court upon a former appeal (70 N. Y. Supp. 762), in the motion made on behalf of the present respondent, Mary Kennedy, as administratrix, etc., from an order directing the payment to her or her attorney of the fund deposited with the chamberlain of the city of New York, pursuant to the judgment herein, modified the order appealed from, by directing that the said Mary Kennedy file additional security as such administratrix, as a condition to the payment over of the money, it, of course, did so under a misapprehension of the facts. Had the record disclosed that the money was already,in the hands of Sweeney, the attorney for the moving party (which it is conceded it did not), no such order would have been granted. Had the full facts then been disclosed, some measure of substantial relief might have been found for this appellant. On the present record, however, and under the existing facts, wre see no way to grant her any relief in this action, or in any proceeding which may be had herein.

The order vacated by the order appealed from does not appear in the record, nór do the papers upon which the same was granted; but, from the facts to be gleaned from the very conflicting affidavits, we are of the opinion that the order opening the judgment, excusing the default of the appellant and allowing her to plead in the action, ought not to have been granted. The default is alleged to have been opened on the ground of her attorney’s negligence, but from the present record it is attempted to be shown that his acts were fraudulent, and characterized by bad faith. It is but fair to state that the attorney vigorously denies the charges of either negligence or bad faith, and sets up facts tending to show that the present situation is the result of agreements made between the appellant and respondent. Either of the grounds above mentioned would be sufficient to excuse a default under most circumstances, but where, as in this case, no relief can finally be granted, the judgment having been regularly entered, the plaintiff’s accounts finally judicially settled, and no complaint having been made as to his administration or to his account, and distribution having been fully made pursuant to the decree, we see no end of justice to be furthered by opening the default, and permitting this appellant to seek to establish her claim, but, on the contrary, it would be unjust to the plaintiff and the other parties in interest. If the., appellant succeeded in establishing all she claims, there could be no relief. The plaintiff has made final distribution pursuant to a perfectly valid judgment. Even the appellant does not claim that the portion of the estate paid over to the chamberlain is not the proper amount. The chamberlain has paid over the disputed share pursuant to an order •of this court, and we see no good end to be accomplished by continuing that litigation. If the appellant has been defrauded of her rights by her attorney, or by the defendant Mary Kennedy, or by both acting in collusion, her remedy, we think, must be sought in some affirmative action or proceeding against them, as she may be advised. These considerations lead to the affirmance of the order appealed from.

The order should therefore be affirmed, without costs of this appeal to either party. All concur. „