66 N.Y.S. 361 | N.Y. App. Div. | 1900
Lead Opinion
This action was brought against the defendant in a representative capacity, to recover for money 'had and received to the plaintiff’s use. After issue was joined by the service of an answer, and the cause had been many times upon the calendar for trial, at which times the defendant had been ready for trial and present in court with his witnesses, the same was postponed, at the request of the plaintiff, until February 20, 1900, when it was peremptorily set for trial. Prior to this time the plaintiff had presented the stipulation of the defendant consenting to a discontinuance of the action, without costs, to which the defendant’s attorney objected, refusing to consent thereto unless his costs were paid.
The reason assigned by the defendant’s attorney for refusing to consent to the discontinuance unless his costs were paid was that the defendant, the Atlantic League, had disbanded, that its members were financially irresponsible, and the attorney’s only reliance for compensation for his services was the costs of the action ; that said attorney, in order to make his defense to the action, and to procure the attendance of the nominal defendant Crane, had been obliged to regularly subpoena Crane, he having no present interest- in the matter. Hpon the refusal of the attorney to consent to the discontinuance, without costs, the plaintiff procured an order to show cause why the action should not be discontinued without costs, and this coming on to be heard, the order sought for was granted, and the action was discontinued, without costs.
It is quite apparent that the stipulation given by the nominal defendant- Crane, was collusive, and intended to be used by the plaintiff to force the discontinuance of the action, without payment of costs to the defendant’s attorney; and the question presented upon this appeal is whether the court has the power to compel, as a condition to the discontinuance of the action, the payment of the costs of the defendant’s attorney.
The attorney does not claim, nor could he successfully, that he is possessed of any lien, either by virtue of the provision of the Code, dr otherwise. It is quite clear that he has no stick, lien, and as no
The power existing, the present case presents facts which make its exercise eminently fit and proper. The plaintiff has caused the defendant to appear in attendance upon the court upon frequent occasions. In the meantime, the association which he represents has disbanded and gone, and the personal membership is wholly irresponsible. The defendant Crane is not only without responsibility, but without personal interest in the result of its law suit. The only person personally interested is the defendant’s attorney, who seems in good faith to have insisted that he had a defense to the action, and has been gracious in extending favors to the plaintiff and its attorneys; has looked.after and protected such defense by causing witnesses to be subpoenaed, including the defendant Crane, and at the very moment when the patience of attorney and court had been exhausted, the consent of the nominal party defendant in the action is procured and, against the protests of the attorney, his rights in the matter have been ignored and wiped out. For these reasons we think that the order should be reversed, with leave to the plaintiff to apply for a discontinuance of the action upon condition of the payment of the costs and such allowance as the court may make at the Special Term.
The order should be -reversed, with ten dollars costs and disbursements.
O’Brien and McLaughlin, JJ., concurred; Van Brunt, P. J., and Ingraham, J., dissented.
Dissenting Opinion
I do-not concur with Mr. Justice Hatch. The application to discontinue this action was made before the determination of the issues presented and before the right of the defendant’s attorney to any costs had accrued. It is conceded that there was no cause of action upon which he could have a lien; and the only contingency in which he would be entitled to costs would be a decision or verdict
Van Brunt, P. J., concurred.
Order reversed, with ten dollars costs and disbursements.