62 Barb. 500 | N.Y. Sup. Ct. | 1872
The former trial, verdict and judgment in this case are of no importance on this motion, for the reason that the judgment, on appeal, was reversed, and a new trial was ordered, with costs to abide the event. The case stands here as if no trial had been had at the time of the settlement by the parties.
The case then, briefly stated, is this: an action of assault and battery was pending, at issue and noticed for trial; when the parties settled the matter and the plaintiff executed to the defendant a release and-discharge, without consultation with, or notice to, his attorney, "to whom he had, in' terms, given a lien on the cause of action as secur
But it is insisted that the plaintiff’s attorney had acquired rights in this case against the defendant, of which he could not be divested by a settlement of the cause of action without his concurrence or assent. This claim is based on the position that he had a lieu on, or right to, the cause of action which the defendant was bound to respect; a right which he could enforce against the latter in this court.' The action was assault and battery; an action arising out of a personal tort. Such rights of action are personal to the party, and cannot be assigned. (19 Wend. 73. 6 How. 161. 22 Barb. 110. 3 Abb. 37. 12 N. Y. 622.) These are but few of the many cases which hold or recognize this rule. In this case, therefore, the. attorney acquired no rights against the defendant by the assignment of the cause of action to him. It transferred no interest in the subject matter of the action. ' It may be valid and binding as an agreement between the
The attorney’s right to prosecute the action against the wishes and without the authority of his client, must rest on the hypothesis that he is an assignee or “ equitable owner” of the cause of action. But he can be neither. The cause of action is not assignable. Ho right could be conferred by any form of transfer of it, as against the defendant, either legal or equitable. If he be assignee, or if he may, as “ equitable owner” of the claim, prosecute the suit for his own personal advantage and benefit, he should be liable to the adverse, party for costs in case of
The case of Benedict v. Harlow, (5 How. 347,) is similar to this now under consideration, in all important particulars ; and is a decision directly in point. This action was assault and battery and false imprisonment. On the trial, the plaintiff had a verdict in his favor. Thereupon the parties settled, without notice to the plaintiff's attorney, and the plaintiff, by a release under seal, discharged the claim, notwithstanding the settlement, the plaintiff entered up judgment, which the defendants moved to set aside. The plaintiff’s attorney resisted the-motion on the ground that the settlement was a fraud upon him, and if sustained would deprive him of all compensation. He showed that he had incurred expense in conducting the suit, and that the plaintiff* was insolvent. Affidavits were also read tend
Having given this motion earnest consideration, and having, as I believe, examined the authorities bearing on the question before me, I am led to the conclusion that the case falls directly within the principles of law laid down in The People v. Tioga Common Pleas, (19 Wend 73;) in Benedict v. Harlow, (5 How. 347;) and in Shank v. Shoemaker, (18 N. Y. 489.) ' It is clear that the cause of action was nbt assignable; therefore the plaintiff’s attorney acquired no right whatever against the defendant, by vir
Thi's seems a hard case for the plaintiff’s attorney, who has performed much labor and has incurred considerable expense in conducting the suits, as, in all probability, he is without redress. But the defendant is not to be held responsible simply because the attorney, can obtain recom
Bockes, Justice.]
Motion granted.