48 N.Y.S. 1016 | N.Y. App. Div. | 1897
The order from which the appeal in this cause is taken denied a motion made by the plaintiffs for leave to enter judgment upon a stipulation made and signed by the attorneys for the respective parties, under the terms of which the action originally brought for the foreclosure of a mortgage was virtually changed into one upon a money demand. In that stipulation, which bears date April 12,1897,
It was urged in the court below, in answer to this motion, that the stipulation, being signed only by the attorneys, was in no way binding upon the parties. It is undoubtedly the rule that an attorney cannot surrender his client’s right nor bind him to any release or relinquishment of that right without special authorization so to do (McKechnie v. McKechnie, 3 App. Div. 91; Lewis v. Duane, 141 N. Y. 314; Arthur v. Homestead Fire Ins. Co., 78 id. 469 ; Mandeville v. Reynolds, 68 id. 528), but this rule is not applicable in the case now under consideration. There is evidence to show that the attorney for the defendants was authorized to sign the stipulation; that both the defendants were present when it was signed and the duplicates exchanged, and that the defendant William Strauss read it over. The special authority derived from this assent was, therefore, made to appear; but the stipulation, according to the affidavit of Mr. Anable, upon which the motion was based, did not contain the whole of the agreement or understanding of the parties. The right of the plaintiffs is not based on that stipulation alone. In the affidavit of Mr. Anable it is distinctly stated that it was agreed that a supplemental complaint should be served, which was done, and it is further stated that the supplemental complaint “ was so served pursuant to an understanding had between the attorneys for the plaintiffs and defendants at the time the said stipulation for judgment was signed, that the same should be served and that the defendants would then serve a formal offer of judgment for the amount agreed upon in said stipulation for judgment, so that judgment might be entered thereon, without application to the court.” It, therefore, plainly appears in the moving papers that by the agreement of the attorneys, judgment was not to be entered until a formal offer of judgment, which, of
The order appealed from should, therefore, be affirmed, with ten dollars costs.
■Williams, O’Brien and Ingraham, JJ., concurred ; Van Brunt, P. J., concurred in result.
Order affirmed, with ten dollars costs and disbursements.