The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1878-12-25

sought to be divided 10 general and the complaint.
alleging tina. the plaintiffs Of the attendants
shc thereof in common, fails to state
that the said Alexander Tuoy Stewart left last will and
testament under which defendants claim
ing and holding adversely alluson
allegation concerning such WILL claims and holdings
Tho plaintiff. Alexander stewart now moves this Court
that p Kncelsnd Esquire Attorney instituted
the action should from acting such
behalf and that Ira sh.fer Esquire should DO subs
in his place Attorney for the said
| Alexander Stewart"
Tho motion 10 made upon the grounds
Frst-Bscause tho s~d Kncelsnd was never employed by
| him such Attorney, and.
scond-Becsuse said Attorney not using tho n.me
of tho said plaintiff good faith but on the contrary
thereof in connection with Mr. Clark H. Chapman an A.
torney of the State of Vermont is
encavoring wrongfuy wickedly exor money from
the defendants CorneIa NJ Stewart and Henry Hilton
by Of such action and the use tho plaintns
namo.
/ A general rule whom right an Attorney to sss
tbs of plaintiff questioned by the opposite party
IL the Attorney be reputable member Of the law the
not unless the action be one for the recovery Of
land require proof authority promced but the
right of require production in all cases un
doubted and 1t will exercised whom in its Judgment the
ends Of justice demand IT, In this case however party
who declares his without authority invokes
tho aid Of the Very clearly he any interest in
the property which is affected by the action he the
right to select the Atarnoy who will enforce it, and ono
whom he has not chosen has right to jeopardze
that interest and subject the party tho
expenses of failure. In such the individual who
claims use his name is unauthorized has the
right all mankind, the redress
grievance As the Attorney in which
of the moving party Alexander Stewart appears
of tho plaintiffs, and his right
enged by party whose used he Attorney
must afrmativey establish such right. holding tina.
proof upon the Attorney ordinary
rules Of logic followed He claims that he
has authority right another must when it
is questioned prove IT, claimed authority
right relates to the of anothers property
though one is layman other Attorney Of this
Court presume when thereon is
directly made that the has acquired rights and
the property of Che former. the
which may subject him great loss injury without
Affirmative proof such rights powers have been
conferred The use Of Alexander Stewards name as
plaintiff action must have already ntimated
affect his property Mr. Kneeland claims that Mr. Stewart
has authorized the act authority must therefore DO
proved.
In the examination of the point which motion
presents tina employment Knoeand by Stewart 70 bring
this action before considering the great aTdavs
and papers submitted il will bo well ones.
tion whether conceding all that Mr. Knseiand claims to
be truo he has sucien. authority to institute and prose
cute this action Mr.. Kneeand's claim is that he saw
letter published in tho New Herald Of June T. 1876
purportng from the said Alexander Stewart TO
Judge Hilton which claim of being cousin to the
dead merchant made by the writer. whersupon on tho
9th day Of the month Stewart al
his residence Procorsvile VI. informn. him that
| no nssland) engaged retained for other heirs
in prsseeuag their rights the estate, and would he
| Aisxanesr like 20 Jo,ns II he wouid. 70 send him
nesiandD the particulars Of his relation is further
claimed that Alex Stewart reception Of this
letter from Knesland company with his son. Robert g.
Stewart. called upsn the before menssoned Clark H
chsrman. a. his ONCE in Procsorsvne. showed him
| the Kssslana letter and authorised Chapman
on his behalf; which facts Chapman
municassa 70 Knessnd BY letter dated July q. 1916
COPY Of the alleged Knseand not
produced and its reception by hi the latter fatty dens
bu, tbs one claimed sy Chapman 70
Kneeaud on tho 9th day July 1875 is exhibited ana
forms par. Of papers upon this motion care
mi perussi OF snc o.,cr however, fails to disclose any
direct rcqucst authority to Knecland to any
proceedings whatever In behalf Of Mr. Stewart who Stew
art Vs. asd his claim relationship With tho former New
York sct and he Is called In such letter
our client word is said about any action what
ever any expressly conferred to bring
The Revised Statutes 10Th Edition, vol 3, page o7s
80 provide ANY written request Of such plaintiff his
TO commence suen sct'"n of recognition
authority Of the attorney TO commence tho
duly proved by the SUCH attorney other CON-
pesens witness shall sufficient presumptvc evidence Of
such authority This provision is contained in Title Of
chapter OF part OF the Revised Statutes which chapter
is entitled "Of Suits Relating Real Property and the
|
title entitled Of tho Action Of Eiectmen- Is the
| tion We have quoted applicable W this motiony
has already boon stated tho direct prayer for relief
/
IN the complaint in this action partition and divide
4
the real estate Of tho late Alexander Stewart among the
parties who therein claimed to be his heirs at law.
Confscy has also boon before said the property 10
all held adversely by tho defendants who claim