83 N.Y.S. 700 | N.Y. App. Div. | 1903
This action was commenced on August 21, 1901, for the purpose of determining the title as between the plaintiff in her representative capacity and the defendant John Quinn to a deposit in the bank of. the appellant. The case was tried at Brooklyn on December- 20, 1901, and resulted in a judgment entered January 8, 1902, decreeing the ownership in Quinn, to whom the bank duly paid the fund in accordance with the requirements of the judgment on' January 11, 1902. The order appealed from, granted on the plaintiff’s-motion, vacates this judgment on the ground that the attorney who represented her, viz., Mr. Edwin B. Fiske, began and continued the action without authority. After a careful examination of the very voluminous testimony taken before a referee upon the hearing of the motion-.! have reached the. conclusion that the orderis .unjust to the
There is no dispute but that Mr. Fiske was duly authorized to begin the action. Such authority was conferred by writing, dated July 27, 1901, duly acknowledged, signed by the plaintiff and the next of kin of her decedent, expressly retaining and employing the. attorney to ask, demand and sue for all moneys belonging to the estate, due to them or any of them. This authority was conferred in contemplation of this suit, the plaintiff having previously endeavored to make a demand of Quinn for the possession of the bank book as a preliminary to the commencement of the action, under the attorney’s advice. He was, however, discharged by her on the night of August 21, 1901,- which discharge was valid as between them, notwithstanding the fact that his services had not been paid for; but the plaintiff with full knowledge that this action had then been commenced by him voluntarily elected to permit it to proceed to trial and to judgment without notifying the defendants, or either of them, that she had discharged her attorney or that he was prosecuting the suit against her will. By advice of new counsel she decided to take the chances of the issue of the suit before publicly repudiating the authority of the attorney by whom it was conducted, and it would be inequitable to compel the appellant to incur the risk of a second payment after having once discharged its liability under a judgment thus procured with every appearance of regularity.
The action was commenced on the afternoon of August twenty-first. Very likely it was commenced by the attorney hurriedly in anticipation of his discharge, but the question under consideration has no relation to his rights, but relates solely to the rights of the innocent appellant. The attorney claims that he told the plaintiff on the night of his discharge that the action had been commenced. This she denies and asserts positively that she never knew that the action had been commenced until she received a letter from Fiske dated November 25, 1901, to which further reference will be made. In this she is clearly mistaken, for as early as August 30, 1901, she received a letter from him in which he distinctly told her that the action had been commenced, as he had told her “last Wednesday, a
•' A number of letters were written by Mr. Fiske to the plaintiff about the suit prior to the trial. He wrote her on November, twenty-fifth as follows: “ Tour suit with Mr. Quinn has been noticed for trial by. both parties, and in ■ all probability will be placed on the preferred calendar for the December Equity Term, which meets on the first Monday of December next. I should like to consult with you in regard to the same. Quinn is quite confident, that he will succeed, but I do not think he will. He certainly will not if we can get our witnesses. I hope you will come and see me so that we may be ready to meet them at the trial. This action was commenced on the 21st day of August.” On the twenty-ninth day óf November he wrote to her again in reference to the case urging her, among other things, not to let the matter go by default, but no notice was taken of these or any of the other letters, nor was any answered excepting that of November twenty-ninth, which was answered by Mr. Morrison in the plaintiff’s name six days after the trial. The case was placed on the day calendar on the second day of the December term and remained there until it was tried. Mr. Morrison, as well as the plaintiff, knew that it was on the day calendar and about to be tried, but for some unexplained reason allowed no hint to escape to the appellant or to its counsel of the severed relations of the plaintiff and her attorney. It may be added that Mr. Morrison was possibly influenced in the course of conduct adopted by the belief that the action was wholly unauthorized, inasmuch as the plaintiff denied to him when questioned upon the subject, that she had executed the written authority dated July 27, 1901. Be this as it may, it is undisputed that the only communication addressed to the appellant was one dated August 26, 1901, signed by. Morrison in which as attorney for the plaintiff as. administratrix he notified the president of the bank not to pay the money oh deposit to any one other than her. But the fact that the plaintiff questioned or disputed Mr. Fiske’s authority to conduct the
There is no suggestion in the record that the case was not fully and fairly .tried or properly decided. There is no claim that any different result will be reached on a new trial, that Quinn has not a good title to the money in question or that there is any witness who can testify to anything on the merits in the plaintiff’s behalf.
The rule of law applicable to the situation is summarized from the authorities in the Encyclopaedia of Pleading and Practice (Vol. 2, p. 685) as follows: “ Taking some early English cases as their guide they held that an appearance by attorney, whether for the plaintiff or the defendant if there be no collusion, may be recognized by the adverse party as authentic and valid ; that when an attorney takes upon himself to appear the court, in case of a domestic judgment, looks no further, but proceeds as if the attorney had sufficient authority and leaves the party to his action against such attorney if he is financially responsible.”
In Denton v. Noyes (6 Johns. 296) it was held that a judgment confessed by an attorney without authority was regular and valid, and that the appearance, although without warrant, was good as to the court. In Hamilton v. Wright (37 N. Y. 502) it was further held that the law warrants a party in giving faith and confidence to an attorney who, by law, is authorized to hold himself out as a public officer, clothed with authority to represent others in the courts; that where an attorney appears for a party the general rule is that a retainer will be presumed, and that the adverse party having no notice to the contrary may act upon such presumption. In Donohue v. Hungerford (1 App. Div. 528) the plaintiff had consulted an attorney in respect to the bringing of an action for libel, but before the summons was served revoked his authority. The complaint was served by him and the action placed at issue, and it was held that the pendency of the action was a good defense to one subsequently instituted by her through another attorney. The court said (p. 530) : “ So in the case at bar the defendants had a right to rely upon the pendency of the action in the Superior Court, and if the plaintiff desired to relieve herself because of the alleged unauthorized com
Goodrich, P. J., Bartlett, Jenks and Hooker, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and judgment reinstated.