Mitchell v. Mitchill — 143 A.D. 172

Majority

p. 172

Frank F. Mitchell, Respondent, v. Charles L. Mitchell, Appellant.

Second Department,

February 24, 1911.

Headnote

Attorney and client — continuation of action to preserve lien.

A plaintiff who is concededly able and willing to pay all his attorney’s just claims for services and disbursements should be permitted to discontinue the action. "Where an attorney commenced an action in violation of his client’s instructions he has no lien requiring the protection of the court, and, if both parties so desire, the action should be discontinued despite the attorney’s opposition.

Appeal by the defendant, Charles L. Mitchell, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 16th day of November, 1910.

George S. Ingraham, for the appellant.

Asa Francis Smith, for the respondent.

This appeal is from an order denying defendant’s motion, in which plaintiff concurs, for a discontinuance of the action. After the plaintiff had retained Asa F. Smith as his attorney and before the commencement of the action, the plaintiff by written notice • personally served, requested the attorney not to commence an action or institute any proceedings against the defendant, and canceled a power of attorney constituting said Smith and one Reba Mitchell

p. 173

his attorneys in fact. Disregarding this request, Smith subsequently commenced this action by causing the summons and complaint to be served on the defendant. The plaintiff is solvent, and able to pay any legal obligation for all services the attorney has rendered, and an action has been commenced against the plaintiff to recover compensation for these services and is now pending. Upon the assertion that the plaintiff was improperly secluded, detained ° and restrained from his liberty by the defendant; that he (Smith) was the attorney of plaintiff and was wrongfully prevented from seeing and consulting with his client, Smith on October 22,1910, caused the issuance of a writ of habeas corpus directing the production of the plaintiff before a Special Term of the Supreme Court on October twenty-fifth following. In such proceeding the plaintiff made an affidavit in which he swears that Smith is not his attorney; that this action was commenced and said writ taken out without his authority and against his wishes; that he was not restrained of his liberty and did not wish to see or consult with Smith, and the writ was dismissed. The plaintiff makes an affidavit upon this motion in which he says that he desires this action to be discontinued.

Upon these facts the plaintiff, eoncededly being able and willing to pay and satisfy his attorney’s just claims, his wishes as to a discontinuance of the action should be respected, and given effect. (Matter of Snyder, 190 N. Y. 66 ,73; Pomeranz v. Marcus, 40 Misc. Rep. 442 ; Dolliver v. American Swan Boat Co., 32 id. 265.) As. was said in Kelly v. New York City Railway Co. ( 122 App. Div. 467 ), while the court should preserve the lien of an attorney and prevent him from being cheated by collusion and fraudulent settlement, a discontinuance asked by both parties should not be denied when it is doubtful that the plaintiff’s .attorney was authorized to bring the action. Smith commenced this action in violation of his client’s instructions, and for these services he certainly has no lien requiring protection by the court. He makes no claim that his rights will be in any manner prejudiced by the discontinuance of this action; he swears that his client is abundantly able and willing' to pay him, and he has elected to pi’osecute his remedy by action. Conceding that the suspicions of Smith that the plaintiff is liable in the future to be wrongfully treated by the defendant are well founded, and that his unsought and forbidden efforts to prevent

p. 174

this result are commendable, the continuation of this action is not the proper remedy for righting the apprehended wrongs.

The order must be reversed and the motion to discontinue granted, without costs to either party.

Jenks, P. J., Burr, Thomas and Carr, JJ., concurred.

Order reversed and motion to discontinue granted, without costs to either party.

Cases cited

In re Snyder 190 N. Y. 66 N.Y. 1907-11-19 at 73 p. 173
Pomeranz v. Marcus 40 Misc. Rep. 442 N.Y. Sup. Ct. p. 173