New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1878-12-25
THE TT. r OF THE DECISION.

THE II T OF THE DECISION.
SUPREME CoUR1.-Alexander Stewart and Ann Jane
Bailey against Cornelia NJ stewart Henry !on S,a
tion by plaintiff. Alexander Stewart 10 eOmpel Mr. .
ted action to substitute Mr. Ira snafer as attorney
for the said Stewart. Mr. Ira shafer Tor the MOTION
Messrs. Cmttenden and Andrews opposed. west
The very voluminous papers submitted upon tbismo-
an earlier disposition thereof The action in whieh 1t
is made. commenced In May, ISIS, ana processes
10 partition the real estate or tue late cAhn
der Turney Stewart among his heIrs-al-law The de-
scrIptiOn OF the real esa sought TO be DIVIDED is very
general, and the complaint alleging tLat the paians
and Of the defendants arc the owners thereo as
tenants common, fails to state that the said Ae1au-
der Turney Stewart left last Will and testament un-
del which Of the defendants are claiming ana
holding adversely, and makes no auson whatever TO-
or allegation concerning, such WILL claims and holdings
The plaintiff Alexander Stewart, now moves this Court
tuSed the action should be removed from acting as
such in behalf, aud that Ira shsfe esquire should
for the SAID Alexander stewart"
The motion Is made upon the grounds:
FrSt-Because the said Kneeland was never employed
by him as such attorney, and
SseOnd-Because the said attorney is not using the
name of the plaintiff in good faith but on the con-
trary thereof, IN connection with Mr. Clark IL Chap,
attorney and oOunsehorat,law OF the sts!e OF
Vermont, is endeavorng wTongfully and wickedly TO
extort money from the defendants Cornela NJ stewart
and Hilton, by means OF such action 8ud te use
Of the plaintiffs name. -. -. - ...
use the name Of plaintiff questioned by the oppo ute
party II the attorney be reputable member OF the law
eovery of land require proof Of authority to be
produced the rg1 OF the Court to require It's pro-
ductjon In AL Is uudoubted and 1t Will be e1eT
csed when Judgment the ends OF justice demand
IT, In tnIs case however. party who declares his
the Court Very clearly, he has interest In the
property which IS affected by the action he has the
one whom has not so chosen has no right to JeopaE
die that interest," and subject the party 10 tGe costs and
EXPENSES of failure. In the individual who
claims that the OF his name Is Unauthorized,
has tue right common to all Mankind ask the Court
res "a
a SUIT IN wlicn the name of the moving party, Alex
shdsr so 70 DO ehaenSed by the party whose nate
is used he 1.-THE attorney must airmatyey establish
upon the attorney ordinary rules OF logic and law
ssrt iG or Th S derived from another must when
it is Questioned, prove II, ana whether such
property or name, the rule is the same The contrO
yersy IL between men, and though one Is laynan and
presume when an thereon is directly made, that
the later acquired rights and powers over the prop
him to great loss and injury, without affirmative proof
that such sSaIs an pS%fEs maze D esen Is
action must, as We have already intimated affect his
property. Mr.. Kneeland claims that Mr.. Stewart has
authorized the act and the authority must therefore be
proved.
ton presents-the employment Of Kneeland by Stewart
10 bring this acton-before considering the great mass
OF adavits and papers submitted, 10 will he well 10 dis
cuss the question: whether coneedng all that Mr. Knee
land claims 10 be true he hiss sufficient authority
sttue aud prosecute tins action MI kneelands claim
rs thai he letter published In The AeU York Herald
ID Il y.
der stewart Judge Hilton, in which claim Of being
a cousin to the dead merchant is made by the writer,
10 the SAID stewart at his residence IN Pr0cOrsve w.
informing him that he" Kneeand, was engaged or
estate and would he" Alexander, like to JON; II he
would. TO send him Kneeland the particulars OF his
relation" IL Is further claimed that Alexander Stew
art the reception of this letter from kneeland IN
The aforementioned Clark H. Chapman at his office in
Proctorsvle, showed him the Kneeand letter, aud
thOrized Chapman employ Kneeland prosecute AN
action on ms behalf; which Facts Chapman comiuun-
to kneeland by letter. dated July o, 1870 copy
duced aud its reception by him the latter fatty denies
TO Kneeland on the 9th day OF July, 1876.
Is exhibited and forms part Of the papers read upon
.8s s a TO- disclose any direct or authority to
kneeland commence proceedings whatever In be-
ra 90 Min the former SswYSF meeSant are
oui, and he Is called in sucn letter :" Our client
1s any power expressly conferred TO bring one. The
provide, Any written request Of sueh plaintiff or mis-
agent TO commence such action, or any written recOgn
S dy the such Attorney
other competent witness shall be sufficient presumptye
fsined in Title OF chapter Of part of the Revised
Statutes which chapter entitled OF suits Relating to
Real Property and the title Is entitled OF the Action
OF Eecment" Is the section we have quoted applicable
TO this mOtioni
relief complaint In this action 10 TO partition and
divide the real estate Of the late Alexander stewart
bairsasw Contessedly as has also been before said
the property IL all held adversely by some OF the
defendants who claim under alleged will OF the
decreased Mr. Stewart and TO which silusiOn what.
ever 10 made IN the complaint AZ the plaintiffs have
not alleged "thnt such apparent devise under which
the property CLAIMED and hsld adversely rs yoid
22l expressly require, 1t is very doubtful whether
the action IN its present form, without an amendment
OF the complaint, can be maintained g X. g.. 9th
edition. page $685. 1, Florence sgt Hopkins, 10th
n. Y 1872. Assuming. however that II can be- It Is
very evident that the primary relief II u is success
ful, must DO that the heirsat-law recover the
possession OF the property, and that the parties
holding adversely under the alleged Will surrender such
possession substance and fact then, this action
one for the The possession OF real estate ad
Yersey held and 10 all inteDts and purposes Is one
identical with that which formerly known by The
bame OF AD aeuon OF ejeetment," although the ulu-
mate relief sought "a partition among It's owners which
however can only be accomplished after their right 70
its possession and enjoyment shal have been estab-
ushed by trial There Is nothing then, IN the form or
character Of the action which prevents the full appi
cation OF the statute
IL may be argued however. that the section we have
quoted only declares and establishes the character of
the evidence be given when the right OF attorney
10 institute the suit questioned BY the defendant Its
that previous sections Q2. Ii, la prescribe
the manner In which q defendant In eieot