Mitchell v. Piqua Club Ass'n — 15 Misc. 366

Majority

p. 366

Horace H. Mitchell, Plaintiff, v. The Piqua Club Association et al., Defendants; Jacob A. Cantor, Receiver.

(Supreme Court—NewYork Special Term, Chambers,

December, 1895.)

Headnote

1. -Judgment — Satisfaction by attorney of record after- substitu- . TION OF ANOTHER ATTORNEY IS INVALID.

A substitution of attorneys for the plaintiff after' judgment has been recovered -operates as. a revocation of the authority ¡ of the - attorney of record to satisfy the • judgment upon payment,' and a subsequent satisfaction executed by the original attorney is not conclusive against the substituted attorney, where the judgment debtor had notice of the substitution before the payment was made, j '

2. Same—Satisfaction without notice to attorney. ' ;

A satisfaction of judgment given by the judgment creditor without the knowledge of his attorney will be -set aside, on motion! of the attorney, where the Creditor is insolvent.

Motion to cancel certain satisfactions of judgments executed by the attorneys of record after a substitution of. attdrneys,. and by the: judgment creditor.

While. in the employ of a "firm of attorneys, Mr. Baker . procured six judgments' in -their name as attorneys of -¡record against the defendant association. Subsequently,' on lpaving ■■ their employ, he procured an order substituting himself as attorney for the judgment creditors-■ and took two appeals to •the General Term on - behalf of such creditors. He was also retained by- one Bushe, -who had procured' six judgments against the association, to carry .on certain litigation in rela- . tion thereto. He sérved notice of his lien on all of such judgments upon, the receiver for the association, who; subsequently paid the six judgments to , Bushe- and compromised

p. 367

the other judgments with said firm-of attorneys, who satisfied the judgments and paid over a portion of the "moneys to Baker.

George A. Baker, for motion.

Eugene Van Schaick, for receiver, opposed.

Whitehead & Suydam, for the association.

It seems to me quite plain that the attorneys of record, who assumed to collect the judgments and to execute satisfaction pieces therefor, had no authority to do so. After the judgments were recovered, there was a consent given by them for the substitution of Mr. Baker as attorney for the judgment creditors, upon which an order to that effect was entered. I assume that these consents were also signed by the judgment creditors themselves, in accordance with the practice in such cases. While it may be doubted whether any order of substitution was necessary, in view of the fact that the relation of attorney and client, to a large extent, ceases upon the entry of the final judgment, the action which was thus taken, certainly, operated to revoke the authority which the attorneys of record theretofore possessed to satisfy the judgments upon payment under section 1260 of the Code of-Civil .Procedure. That section, while conferring such power for a period of two years after rendition of judgment, expressly provides that, where the authority has been revoked, a. satisfaction by the attorney is not conclusive against the person entitled to "enforce the judgment "in respect fo a person who had actual notice of the revocation before a payment on the judgment was- made, or a purchase of property bound thereby was effected. In the cases before .me, the receiver had "actual notice of the substitution, and, therefore, of the revocation of the authority of the former attorneys of record to- receive the money and to satisfy the judgments. It follows, therefore, that the "motion made to cancel the satisfactions of these judgments' should be granted, unless the dif

p. 368

ference' between the amount which the substituted attdrney has actually received from the former attorneys of-record and the amount due on the judgments irrespective of such ¡payments is-paid "to the present attorney within a,time'which will be fixed, in the order. . In. respect to the judgnients rendered in the cases' in which Mr. Baker was attorney of record, it is also clear that his lien for his fees has been; disregarded. He gave' notice of such lien to the receiver, and was, therefore, entitled to have it respected. In place of this, the judgments in question Were, without his knowledge, paid to the judgment creditor,, who has. satisfied the same. As the evidence shows that the latter is insolvent, the right of the attorney to have the satisfactions set aside seems.clear under theauijhority of the case of Commercial Tel. Co. v. Smith, 57 Hun, 176 . It will, therefore, be so ordered. If there'is any. question in respect to the amount of the attorney’s lien it may be settled' by a reference. It is proper to say. that'no 'imputation of bad faith rests upon the . receiver, but that his'action-in these matters was the. result of inadvertence.

.Motion- granted, with ten dollars costs.’