39 N.Y.S. 24 | N.Y. App. Div. | 1896
The appellants rest their case upon two propositions: First, that a party has, ordinarily, a right to change his attorney at pleasure upon payment of the attorney’s reasonable charges; second, that where an action in equity, like the present, is brought by an individual plaintiff, upon his own behalf and upon behalf of all others similarly situated, such individual plaintiff may discontinue the action at any time before judgment. The appellant Clirehugh frankly intimates that it may be his purpose, upon securing a change of attorney, to discontinue the present action, and thus leave the other creditors of the bank, some 1,100 in number, without redress. We say without redress, because it seems to be conceded that the Statute of Limitations has now run against fresh actions by any of these creditors. The proper disposition of this appeal does not require us to analyze the rules above referred to, nor will it be necessary to consider their precise scope or limitation. The real question is, shall we permit these general rules, viewed in their broadest aspect, to be utilized for a fraudulent purpose?
There is here no question of a client’s right to change his attorney for proper or ordinary purposes. Shall he be permitted to do so for improper purposes foreign to the action ? Shall he, to secure his own ends, be allowed directly or indirectly in effect to bargain away the rights of those whom he represents, or, rather, having substantially made such a bargain, will the court sanction and enforce it ? For that is what it comes to under the guise of applying the general rule that a client should be at liberty to dispense with his attorney when the latter has ceased to be satisfactory to him. There can be but one answer to this question.
As to the second proposition, it is said that each of these creditors might have brought suit upon his own account, and, not having done so, he must take the consequences of a discontinuance which he should have known that the law authorizes before judgment. But 1,100 independent actions would have been impracticable, and, indeed, intolerable. It was to avoid this suggested multiplicity of actions that the arrangement in question was made between Hirshfeld and the receivers of the bank. We think that arrangement was not only legitimate, under the circumstances, but commendable, and that it should be enforced. It prevented a multiplicity of actions, and
The court at Special Term properly exercised its discretion in denying the application and the order appealed from should be affirmed, with costs.
Van Brunt, P. J., Rumsey, O’Brien and Ingraham, JJ., concurred.
Order affirmed, with costs.