Donohue v. Hungerford — 1 A.D. 528

Majority

p. 528

Maria L. Donohue, Respondent, v. Theodore A. Hungerford and John Martin, Appellants.

Headnote

Attorney and client — unauthorized appearance—cannot he attacked collaterally — defense of another action pending.

The appearance of an attorney, who is claimed to have acted without authority in thus appearing, cannot be attacked in a collateral proceeding.

The client’s relief against an unauthorized appearance by an attorney on his behalf exists in a direct application to set-it aside made in the action in which the attorney has appeared.

In an action brought to recover damages resulting from an alleged libel the defendant, among other things, pleaded the defense of another action pending in the Superior Court of the city of New York between the same parties and for the same cause of action. Upon this question it appeared that the present plaintiff had consulted an attorney in respect to the libel, but that before such attorney served the summons in the action in the Superior Court, and in July, 1892, she revoked Ms authority, refused to sign a complaint in that action, and asked for his bill; notwithstanding which the complaint in that action was served, and in August, 1892, the defendants therein answered.

On October 5, 1892, the present action was commenced in the Supreme Court, and tiie answer, served therein in December, 1892, set up the pendency of the action in the Superior Court.

Held, that the defense of another action pending was established;

That as the plaintiff knew of the commencement of the action in the Superior Court upon the day after it had been begun, it was her duty to take steps in that action to set aside the unauthorized action of the attorney;

That because of her neglect, to do so the defendants were obliged to answer in that action, they having no right to challenge the authority of an attorney who appeared for the plaintiff in an action against them.

Appeal by the defendants, Theodore A. Hungerford and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 15th day of October, 1894, upon the verdict of a jury rendered after a trial at the New York Circuit, and also from an order entered in said clérk’s office on the 4th day of October, 1894, denying the defendants’ motion for a new trial made upon the minutes.

JD-. P. Hall, for the appellants.

George M. Curtis, for the respondent.

This action was brought to recover damages for an alleged libel Amongst other defenses the defendants set up that at the time of the commencement of this action, and at the time of the service of the answer, there was pending in the Superior Court of the city of New York an action between the same parties and for the same cause as that set forth in the complaint herein.,

Upon the trial it appeared that the plaintiff had consulted one William H. hfundy, an attorney, in reference to her rights in respect to such libel, and by her reply she admitted that she gave him authority to represent her in legal proceedings against the defendants. But she testified that before the summons was served in the case at bar she wrote to said attorney revoking his authority, and that upon the next day he called upon her and told her that she had no right to discharge him, and that after receiving her letter he had gone to the defendants’ office and served the summons (referring to the summons in the action in the Superior Court). This was in July, 1892. She testified that at that interview the attorney asked her to sign a complaint; that she refused to sign the complaint and told him that if he would give her his bill she “ was through with him and wanted to have nothing more to do with him.” She also testified that she never authorized him to bring an action, or to serve a summons or complaint, in her name against the defendants in the Superior Court or in any other court. Subsequently the complaint in the Superior Court action was served and the defendants answered in August, 1892.

On the 5th of October, 1892, this action was commenced in the Supreme Court by the service of a summons. On the 15th of October, 1892, the issues joined in the Superior Court action were noticed for trial. On the 18th of November, 1892, the complaint in this action was served. On the 31st of December, 1892, the answer was served, setting up, amongst other things, the pendency of the action in the Superior Court, and the reply of the plaintiff was served on the 17th of January, 1893.

It is urged that the pendency of the action in the Superior Court is no defense to this action, because such action was commenced not only without the authority of the plaintiff, but against her

p. 530

express command. It has long been the settled rule in this State that the appearance of an attorney who is claimed to have acted without authority cannot be attacked in any collateral proceeding, and that such appearance is binding. The only method in which a party may-seek relief from such unauthorized appearance is by direct application in the action. (Brown v. Nichols, 42 N. Y. 26 .) This rule has been recognized in many other cases. ( Vilas v. R. R. Co., 123 N. Y. 440 ; Washbon v. Cope, 144 id. 287.) In the latter ease the court said: “ It has been settled by an unbroken line of decisions in this State running many years back, that unless under some peculiar and extraordinary circumstances, not existing in this case, the objection that a party was not served, and an appearance by an attorney in a court of record for such party was unauthorized, and hence that the judgment was without jurisdiction, cannot be taken in a collateral proceeding or action, and that the party is confined to a motion in the original action in order to obtain relief; ” and cited cases.

So in the case at bar the defendants had a right to rely upon the pendency of the action in the Superior Court; and if the plaintiff desired to relieve herself because of the alleged unauthorized commencement of that action, she was bound to move in the Superior Court, and there obtain relief. The plaintiff knew of the commencement of the action in the Superior Court upon the day after it had been begun, and that a complaint would be served, and she took no steps whatever to set aside this alleged unauthorized action of the attorney. The defendants were required to answer in that action or a judgment would have been taken against them by default. It was not for them to challenge the authority of the attorney. An attorney is an officer of the court, and is presumed to act with authority; and a litigant who knows of an unauthorized action on the part of an attorney claiming to act for him, is bound to see that he is relieved from the presumptions which necessarily arise from the bringing of an action by an attorney.

Our attention is called by the respondent to the case of Allen v. Stone ( 10 Barb. 547 ), which, instead of supporting the claim .advanced by her, seems to be an authority in favor of the proposition above stated. It is held in that case that where process is served upon a party, and there is an appearance by an unauthorized attor

p. 531

ney, the party will not be relieved even if the attorney is responsible. The question, however, determined in that case was, that where a person had commenced a suit before a justice, in the name of another, pretending to be the assignee of a claim in favor of the latter against the defendant, and had appeared as attorney for the nominal plaintiff on the trial, falsely swearing to his authority to do so, and on appeal by the defendant had retained an attorney to appear for the respondent and afterwards to defend a writ of error, the nominal plaintiff was not bound by the acts of the attorney until after he had notice of the suit. In the case at bar the plaintiff had notice of the suit the day after it was begun.

The case of Pulver v. Harris ( 62 Barb. 500 ), also cited by the respondent, held only that, upon an application in the action, an attorney had no right to prosecute it against the wishes and without the authority of his client on the ground of his being the assignee or equitable owner of the cause of action. This case was affirmed by the Court of Appeals ( 52 N. Y. 73 ).

It would seem, therefore, that the proceedings of the attorney could not be attacked in this collateral manner. The plaintiff had prompt notice of the commencement of the suit, and the defendants were required to answer or a judgment would have been taken against them by default; and when the defense of the Superior Court action was set up by the answer of the defendants, the plaintiff took no proceedings whatever to get rid of that action. Consequently at the time of the trial of this action the defense was a good one and the defendants’ motion for a dismissal of the complaint should have been granted.

The judgment and order appealed from should be reversed and a new trial ordered, with costs to the appellants to abide the event.

Babbett, Rumsey, Williams and Pattebsost, JJ., concurred.

Judgment and order reversed and new trial ordered, with costs to appellants to abide event.

Cases cited

Brown v. Nichols 42 N. Y. 26 N.Y. 1870-03-21 p. 530
Vilas v. Plattsburgh & Montreal Railroad 123 N. Y. 440 N.Y. 1890-12-02 p. 530
Allen v. Stone 10 Barb. 547 N.Y. Sup. Ct. p. 530
Pulver v. Harris 62 Barb. 500 N.Y. Sup. Ct. 1872-07-09 p. 531
Pulver v. Harris 52 N. Y. 73 N.Y. 1873-01-28 p. 531