6 Wend. 658 | N.Y. Sup. Ct. | 1831
By the Court,
By the rules of this courts, an attorney prosecuting a suit is liable for costs to the defendant, in case he succeeds, to the amount of $ 100, where the plaintiff resides out of this state, and that liability attaches,- although the party in interest be a resident within the state. In Waring v. Barret, 2 Cowen, 460, the real plaintiff was Brady, who resided within the state; but we granted a rule against the attorney for $100, and against Brady for the balance. No doubt the real plaintiff, the owner of the demand, is liable for the whole, but that does not release the attorney. In Chaffee v. Thomas, 7 Cowen, 358, we held that the attorney was a competent witness, where he was fully indemnified against his liability for costs, and that I believe is the extent to which we have gone in such a case. Here the attorney was retained by a person residing in this state, for whose benefit this suit is prosecuted; for aught that appears, that person may be insolvent, and the attorney have no security indemnifying him against his liability for the costs. He was therefore an incompetent witness.
It is, however, not very important whether he was competent or not, as his testimony does not prove that kind of promise which has been held to be a waiver of demand and notice. In Trimble v. Thorn, 16 Johns. R. 150, Chief Justice Spencer refers to the previous cases in this court on this point, and states the substance of them to be, that a subsequent promise to pay is a waiver of the want of notice in cases only where the promise was made with full knowledge of the fact that due notice had not been given, and that knowledge is not to be inferred from the promise itself, but it must affirmatively appear that the party knew he had not received regular notice; otherwise the presumption is that the promise was made under a belief that regular notice was
Such is this case, and therefore the plaintiffs did not shew enough to entitle them to recover.
A new trial must be granted, with costs to abide the event.