Cahill v. Manhattan Railway Co. — 38 A.D. 314

Majority

p. 314

Mary Cahill, Respondent, v. The Manhattan Railway Company, Appellant.

Headnote

Action in forma" pauperis — an agreement by the plaintiff to pay his attorney is fatal to the right to continue it.

An agreement.for compensation, made between an attorney and a plaintiff who has obtained leave from the court to prosecute as a poor person, is fatal to the plaintiff’s right to continue the action in forma pauperis.

Appeal by the defendant, The Manhattan Eailway Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 2d day of December, 1898, granting the plaintiff leave to prosecute the action as a poor person. . ■

■Joseph H. Adams, for the appellant!

Robert H. Ernest, for the respondent.

The action is to recover damages for personal injuries, It is-■admitted that the attorney made an agreement- with the plaintiff whereby he- had an interest in any recovery as compensation for his services. The Code of Civil Procedure (§§ 458-467) provides that where an order is made permitting prosecution by the plaintiff of the action as a poor person, the court by order must assign an: attorney “ who must act therein without compensation.” (Code. Civ. Proc, § 460.) The agreement made was, therefore, fatal to the plaintiff’s right to a continuance of the action as a poor person by an attorney acting under such an agreement.

The force of this argument, however, is said to be met by a-stipulation which the attorney says he made subsequently before the motion, but which, does not appear in the moving papers, whereby he stipulated that he would prosecute the action without compensation. If such a stipulation, has been made, it has not been tiled, nor does it appear among the papers, nor are we informed of its exact terms. And, which' is equally important, there is no statement from the plaintiff herself that she has accepted or acted upon the force of the stipulation, and no statement as to what her understand

p. 315

ing or arrangement is as to compensation, or as to whether she is under any obligation to pay to this attorney or to any third person for his use and benefit any money as compensation. The conditions under which an order of this kind may be granted are set forth in Harris v. Mutual Life Ins. Co. (20 Civ. Proc. Rep. 192) .

We think, therefore, that the order should be reversed, with ten' dollars costs and disbursements, and that the motion .should be denied, with ten dollars costs." '

Van Brunt, P. J., Barrett, Rumsey and Ingraham, JJ., concurred.

Order reversed, with ten dollars costs and disbursements,- and motion denied, with ten dollars costs. :