Williams v. Barkley

65 N.Y.S. 356 | N.Y. App. Div. | 1900

Per Curiam:

The history of the litigation, of which the present action forms a part, covers a long period of time and involves a series of transactions between the parties thereto which are largely collateral to the original issues. The circumstances out of which the present action arose have already been fully detailed and. considered by this court, and for that reason it becomes un'necessary to refer to them with any partieularity at this time. (Matter of Barkley, 42 App. Div. 597.) In the case last cited it was held by this court that inasmuch as the action (which is. the same as the one in which the order appealed from was granted) was- brought to review the proceedings then pending for the determinatian of the respective rights of Orville M. Barkley and his attorneys and counsel, and to annul the referee’s report therein, which report had -been confirmed by this court, an injunction restraining the New York Central and Hudson River Railroad . Company from paying, and Orville M. Barkley from receiving, the amount of the judgment which was the subject matter of the controversy should not be sustained, and for the same reason we think the order nów under review should not have been granted. • In the proceeding first above cited (Matter of Barkley, supra) it was determined by the referee that the original attorneys of record and their privies, who constitute the plaintiffs in this action, had lost all lien upon and claim to any part of the.above-mentioned judgment by virtue of the contracts set forth in the moving papers herein, and. that they should be left to their action for the recovery of their fees and expenses. To meet any such recovery and to provide for its.payment, Barkley was directed to either deposit $2,000 in court to the credit of the action or file a bond in that .sum, with two sufficient sureties to be approved by a justice of the court, “ conditioned for the payment of all costs and fees in the action which shall be found due to his original- attorneys of record and for services of counsel employed by them at such sum as shall be adjudged a reasonable compensation therefor.” It follows that, upon the making of the required deposit, or the filing of a proper bond, Barkley would have been entitled to . have the entire amount of the judgment paid over to him. But it seems that an appeal was subsequently taken to the Court of Appeals from the order of this court, confirming the report of the referee in the Barklev proceeding, and it was to provide for a possible reversal of that order that the Special Term order of July 22, 1899, was made which directed that one-half of the amount paid upon the judgment, to wit, the sum of $6,240.08, should be deposited with the treasurer of Monroe county. The appeal having, however, been dismissed in January last (Matter of Barkley, 161 N. Y. 647), it follows that there no longer exists any reáson for withhol ding from Barkley the amount paid upon the judgment recovered by him against the railroad company. All the plaintiffs have had their day in court, and it having been once adjudged by this court that they are not entitled to .have any of the contracts set forth in the complaint herein specifically enforced, we do not understand upon what theory it can now be successfully asserted than the question is an open one, so far, at least, as this court is concerned. On the contrary, we think that proper regard for former adjudications requires that the order appealed from should be reversed. All concurred, except Williams. J., dissenting, and Adams, P. J., not voting.