Marquat v. Mulvy

9 How. Pr. 460 | N.Y. Sup. Ct. | 1854

By the court, Dean, Justice.

An objection was taken on the argument, that as the notice of the plaintiff’s attorney was to set aside the judgment for “ irregularity,” that it was not appealable. The notice did not stop with setting aside the judgment for irregularity, but adds, “in this, to wit: in entering up judgment and filing a record thereof subsequent to a full and complete settlement,” &c. This clearly is not merely an irregularity, although the plaintiff’s attorney has called it such. I think the order an appealable one, and that the.motion should now be decided on the merits.

Mulvy in his affidavit says that the plaintiff in the first interview on the 5th February, told him the “ old suit ” was still going on. He further says that he had no knowledge of the decision in his favor, and that he was threatened by plaintiff and those who accompanied him with arrest for perjury if he did not give the receipt; they also told him that in the event of a decision in his favor he would get nothing, but his attorney would retain, the whole for fees. He says .that under these circumstances—in the absence of his attorney in the action—in ignorance of the true state of facts, and to avoid an arrest for perjury, he signed the receipt, and the constable then surrendered the warrant to, him. It is very clear, therefore, that a part of the consideration with Mulvy on the settlement was this release from, arrest, or liability to arrest on the warrant. And as this was illegal, both on the part of the plaintiff and defendant, and affects materially the rights of an innocent party—the defendant’s attorney—I think the settlement was void, and should not be regarded by this court.

There is an additional reason why this arrangement between the parties should be held invalid, growing out of the duty of the court to protect its officers. The affidavits show that Mulvy is utterly irresponsible. A judgment had in justices’ court been obtained against him. From this he appealed to the county court, and at last it got into this court, where a final judgment had been rendered. Mr. Wager, his attorney, had followed it all the time. He had, in addition to his own services, been necessarily compelled to expend a considerable sum in disbursements, and to allow this act of the parties to stand would leave him without any redress. It is impossible after reading the papers submitted on this motion, to doubt that the object of the plaintiff in seeking the defendant at the time he did, and subsequently employing the means that were used, was to avoid the payment of the costs which had been adjudged against him, and which equitably belonged to the defendant’s attorney. I do not think it necessary in this case to give an opinion upon the point which seems at present disputed as to, the lien of an attorney on the judgment for his costs. The court has the custody of its own records and the control of its process, and while it will interfere summarily to protect a party from the imposition or fraud of an attorney, it is bound on the other hand to shield .its attorneys and other officers from the frauds of parties. . By rigidly enforcing this rule, we shall best protect both attorney arid client, and. prevent attempts at undue and unfair practices.

As .the county- court ordered restitution to the defendant of the amount collected of him on the justices’ judgment, there is probably enough in the judgment in this court to pay the defendant’s attorney, after deducting the $12 paid to the defendant on the 8th February, 1853. It may be equitable to allow that as a payment. I think, therefore, that the order refusing to set aside the judgment should be affirmed, and the defendant’s attorney should be directed to collect the judgment, less the $12 and interest thereon.

Ordered accordingly.