47 N.Y.S. 951 | N.Y. Sup. Ct. | 1897
This is a motion to strike the cause from the calendar as being improperly thereon. . The facts are as follows, -viz.: On November 23, 1894, the summons and complaint were served, with William L. Van Derzee, as attorney of record for the plaintiffs. On March 13, 1895, the-plaintiffs made a general assignment to one Charles Jaudon. No order, however, was entered substituting the assignee as plaintiff herein, but the suit has proceeded with the original plaintiffs only. On July 3, 1895, issue was joined herein with said Van Derzee' still as attorney of record for plaintiffs. On September 7, 1895, said Van Derzee gave to the assignee a consent in blank for the substitution of another attorney for the plaintiffs. No order of substitution, however, was entered until October 15, 1897, after the ease had appeared on the calendar and after this motion had been made. On March 15,1896, one Matthew Daly, who appears to have been the attorney for the assignee, and who had been asked by the assignee to represent the plaintiffs in this action, in place of said Van Derzee, filed a note of issue herein. It does not appear from the papers before me whether Daly’s name is given in this note of issue as plaintiffs’ attorney, or whether he used the name of Van Derzee, with or without the knowledge and consent of the latter. But be that as it may, it does appear that on March 19, 1896, the said Daly served a notice of trial on defendant’s attorney, in which notice Daly’s name is given as that of the plaintiffs’ attorney. This notice was immediately returned by defendant’s attorney on the ground that said Daly had not been substituted as attorney for the plaintiffs, and had no standing in the case. No other notice of trial has been served. On October 15, 1897, the cause appeared on the calendar, and this
Motion granted.
