Kingston Bank v. Roosa

Headnote

An attorney who had retired from practice on account of ill health, and re moved some twenty miles distant from his office, verbally requested anothei attorney to take charge of his books and papers remaining in his office, and settle up what was unsettled; and the attorney, thus authorized, received costs in a suit, and a stipulation to try for him (which was one of the suits unsettled). Reid, that the authority was sufficient, notwithstanding on a motion afterwards the attorney first mentioned and his client both swore that they never gave any authority to receive the costs and stipulation in the cause.

Motion to set aside judgment for costs against plaintiffs. Defendant moved for judgment as in case of nonsuit, at the last September special term; which was granted, unless plaintiffs stipulated to try at the next circuit, and paid costs of motion. Within twenty days the plaintiffs paid costs and stipulated to try, by paying the costs to M. Schoonmaker, Esq., an attorney of this court, residing at Kingston, and serving on him a stipulation. Philip E. Pitcher, Esq., of Redhook, the former attorney of defendant, and who formerly resided at Kingston, left the papers in this and other suits with his late partner Nicholas Sickles, Esq., who died in May last.. Mr. Schoonmaker, in the early part of last summer, being about to administer upon the estate of N. Sickles, deceased, called upon *Mr. Pitcher (who had retired from the practice of law, on account of continued illness, who requested Schoonmaker to take charge of his books and papers remaining in the office of Sickles & Pitcher, and settle up what was remaining unsettled (the papers in this suit being among the rest), which was accordingly done by Schoonmaker.' In the latter part of June, and after the interview with Pitcher, the defendant called on Schoonmaker, and requested him to make out papers for motion for judgment as in case, of nonsuit, which was done by Schoonmaker, in the name of Pitcher. At the time plaintiffs’ attorney called to pay costs and serve stipulation, Schoon

maker told Mm lie had authority to act for Pitcher as his agent, and that as such he would receive the costs and stipulation, and accordingly did so, and gave a receipt for the costs in the name of Pitcher: all of which was communicated to the defendant Roosa, within a few days thereafter. Subsequently the defendant Roosa requested Sehoonmaker to procure from Pitcher an agreement to have another attorney substituted for defendant, which was done, and Egbert Whitaker, Esq., of Saugerties, was substituted in the place of Pitcher, on or about the 28th of October last. The defendant’s present attorney entered up judgment for costs against plaintiffs, on the 1st November last. It was sworn to by the defendant Roosa, and Pitcher, his former attorney, that they had not received any costs of motion or stipulation to try from plaintiffs, nor had they authorized any other person to receive the same for them. Whitaker, the present attorney, stated that he knew notMng about the cause, until on or about the 24th of October last, when it was intended to substitute Mm as the attorney for the defendant, and when he learned that the costs had not been paid to defendant or Pitcher, afterwards he heard plaintiffs had pretended to pay the costs to Sehoonmaker, whose authority to receive them was denied by the defendant and Pitcher.