The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1869-01-15
SUPERIOR CcURT-spECul TERM.


The Powers Of Attorney Assuming to Act for
their Clienfs-ImpOrtRnt Decision.
Before Judge McCunn.
Charles quinn, Administrator, &C., Us. James r.
Liovd.-This Ii . motion TO set aside stipulation
given by an attorney without the consent or
knowledge Of his client, vacatng judgment, which
Judgment was pending on an appeal to the gene
raj term Of this court and which was amply secured
on tho appeal. II IL claimed that the defendant
against whom this judgment was obtained is insol
vent and has left the State, and that the only oppor
tuniy left for plaintiff to receive satisfaction Of his
clam Ia any right or claim he may have acquired by
virtue OF the bond appeal anc that as the consent
vacates the Judgment the bondsmen on the appeal
are released.
II n quite clear nom the afndavis in the case that
the attorney for the plaintiff exceeded his power IN
giving such Q consent The judgment was for over
o. 900 and was obtained Ia May last. A motion was
made for trial. upon the ground Of newly dis
covered evidence aud denied by this court; subse-
qnentiy An appeal WAS taken to the general term.
and when that appeal was pending and when the
rom he state his attorney agreed and accepted
ESQ aud yacared the appeal, and sent the
cause back 70 the calender Tor trial BY jury.
he had signed and delivered q consent
81 substitution, q consent although no order was
entered tlsreupon. yet consent which was known
10 exist by defendants attorney. The excuses
offered this court by the two attorneys fplanti1s
and defcndAnsl for their course IN this respect are
OF the most trifing aid unreliable kind, and must
not he allowed To stand In the path OF justice II 1t be
IN tie power Of thls court 10 remedy the same Be-
fore assign my reasons for believing that the
sent 10 vacate this judmcnt h null and void, viii
call the attention Of those Interested In this to
the statutes an this state covering Just such transac
ions Any attorney who shall be guilty Of consent
deceit collusion with the intent to deceive
the court OF any parties shall be deemed guilty OF q
misdemeanor cd X. statutes, us, laws OF 1919.
Ans attorney found VIGOROUSLY in default OF record
or guilty OF any deceit or malpractice or INSIDE
a., .',an ~ "a. ,a on ' me- ,% ra, Mo.;
statues de- that the delaying suit wifuly
ceissng money ON account OF disbursements not
made OF incurred forfeils treble damages. These
and ether acts we're passed IN order TO protect
eiienis aud snitors a. lar rs possible from
Just such practices AZ have been resorted
should he strictly held 10 an honorable
a. the attorney and counsellor, because they
responsibilities attached 20 those duties, therefore
their every oct should be scrutinzed by the courts
them or oeiinqncncics pcrpctrated should be re-
paired or punished at once. | know that the rule
has been insisted upon. that an attorney under GER
tain circumstances can discontinue his suit nj any
time and allow his client seek q remedy through
another advocate, but this be must not do 10 the
prendife ~ bis client An attorney cannot by TAX
ma part oG Z claim In Judgment or one In litigation
Naft~l thF whole. ihls ruie mas been 80 frequently
held thbt L has almost become elementary. When
the lusiglls ~ has been well secured appeal. as
the one der discussion has been. and when
the deicna.ss has her % state and Is entirely worth
oralnsr, set IA lac f,aiises when ne consents 20
neu tt8 because he thereby releases the sureties,
,ns on, "a. parties upon whom o.. he or MS client lien,
rude was laid down IN the case " saard vs.. Smart
II ,ow., sssl. IN the case % shaw va kidder q
lioM r. ~. 91tl q WAS held that attorney could
NOS Settie aud conclude has client In re alton
20 the subject tn dispute without special authority.
Vi MAJ he argued thai the consent TO a new
irsai vas MOI a scttIlng OF the SUIT IN this
case. " was. however, settlement 20 all inients
and purposes iof " released AL responsible parties
aQA4 NH fatr
could ~ made 81 any responsibility. The doing OF
act ~ an Ssfiofnsy whereby the interests OF has
nst the perIonsnr 81 ms ordinary duties in the suit
shall hold that u ~ dong that which he has
gns v DO moe ha. Nc noe the counsel on the other
Eite ans riyt 70 connise Az and shall futher hold
thai no advantage can he taken of such aconscnt,
neither " Ihs defendant IN tnls action nor by
Az .s ss' s % an 1sss' a s is os a. s Sa.
dating sa % ,s p s ~ sso1 ana TOT
has M further ~ grcsicr authority for the peneit OF
M. client, although he may think he has. Now, he
ave q Satisfaction psece for the whole. 10 has no
xnt 20 mnd his client 70 an appeal bond. although
rr ~ And s.scoaiaae sais broasss 10 recover
ps.sssslon Of isnas even n he gets conveyance Of
ihs greater part % me land dspu,e This Is the
.rAmmAge 4 reek-l and t.Dv VI, Miller ,as
me rule y ssss s ssga N the case "
Hos va lawrence Il Isb. \. J. X 2s.L tired IN the
Court of Cnsnrery New Jersey. Indeed, ~ n case
sgAt IN POINT There u ~ss stipulation 70 grant
new trial. herr n n . like stipulation. The Chancei-
ior IN hls opinion sestinx aside such stipulation
ssJs-sThe stipulation 70 waive Judgment aud grant
Dew trial vas not an agreement Tor the conduct 81
the csee; vss dsitbsfste surrender OF his clients
rixhtA SURRENDER IN en- conceive the counsel mas
no power u make. and whtcn " ne hal the power,
justice would never permit 20 be enforced 2 - ="
TITS n iuss and righteous language ard shall adopt
the princspie contained thelsin IN guiding me
In the disposal cf THE Ease Ihe same rule
vas ESTABLISHED n .se essors'ea o.~
where the Judge heed that the Coust has the r,wcr,
without douts IN case % frsad OF mistake, 70 ~.
eve patty from the enects ~ such stipulAtion "
operss<s thus hat the plaintiff IN THIS action
would he JUSTIFIED In proceeding with hts remedy
against ns attorney, but the rule IS now settled AMI
" tho just rule aud practice for the Court " relieve
the client without reference % the responsibility OF
his lawyer. " would be harsh rule, indesii "
would he unjust " permit one party 70 obtain M
undue advantage another by reason of the neg
uecncc OF misconduct Of that 0theg's attorney Sucn
was the equitable rule held BY our supreme
Court IN the case OF sharp ". TIE Natot.
can elite n large nuiner ~ cases ali establishing
beyond N IoulsN Ia fanf anu SCI Astt3