Cunningham v. City of New York

148 N.Y.S. 170 | N.Y. App. Div. | 1914

Scott, J.:

It is quite clear that the administrator de bonis non of the goods, chattels and effects of Erwin L. Coolidge, deceased, had no authority to collect and receive the amounts of the judgments against the defendant, until thereto authorized by the surrogate. (Code Civ. Proc. § 2664.) What he could not do himself his attorney could not do as his agent. The payment to the attorney Waring was, therefore, unauthorized and his attempted satisfaction of the judgments ineffective. These facts justify the judgment appealed from whereby the parties Will he restored to the position they held before the unauthorized satisfaction pieces were executed and filed.

It does not follow, however, that defendant should he required to pay the said judgments in full. It is entitled to he credited upon said judgments with the amount paid into court under the order of October 14, 1904. Assuming that no payment could lawfully be made out of the recovery for the expenses of the action, except after the surrogate had determined the amount to be paid, and that in the particular action the surro. gate had exclusive authority to determine such amount (Code Civ. Proc. § 1903), still the Supreme Court in which the action was pending and to which application necessarily must be made for a substitution of attorneys, had authority to provide protection for the claim of the original attorneys, even if it had not authority to determine the amount due to them. So much of the order of October 14, 1904, which required a certain sum to be paid into court to protect the claims and Hens of the original attorneys was, therefore, valid, and the payment of the specified sum into court discharged defendant from all liability to the extent of the money so paid in. (Code Civ. Proc. § 743.) Whether the chamberlain was justified in paying over any part of said sum to the attorneys for whose protection it was deposited, if indeed he did so pay it (as to which the decision is silent), without an order of the surrogate fixing the amount to be paid is a question which does not now arise. It can be determined when the chamberlain to whom the money was paid is called upon to refund it. He is not a party to the action and no judgment respecting his liability can be entered.

The defendant is also entitled to be credited with such amounts as upon a proper application shall be allowed by the surrogate under the provisions of section 1903 of the Code of Civil Procedure. The application for such allowance may be made by any person interested including, under the circumstances of the present case, the defendant.

The judgment appealed from will, therefore, be modified in accordance with the views hereinbefore expressed, and as so modified affirmed, without costs to either party.

Ingraham, P. J., McLaughlin, Laughlin and Clarke, JJ., concurred.

Judgment modified as indicated in opinion, and as modified affirmed, without costs. Order to be settled on notice.