Buser v. Jacobowsky — 110 N.Y.S. 252

Majority

p. 252

BUSER v. JACOBOWSKY.

(Supreme Court, Appellate Term.

May 15, 1908.)

Headnote

1. Pleading—Supplemental Answeb—Denial of Leave to Sebve—Attobney and Client.

That plaintiff in a personal injury action settled his claim without the knowledge or consent of his attorney, who with defendant and her attorney’s knowledge, had a contingent interest in the recovery, does not warrant a denial of defendant’s motion for leave to serve a supplemental answer, setting up the settlement and a release.

2. Same—Conditional Allowance of Leave—Costs.

Leave tó defendant in a personal injury action to serve a supplemental answer setting up a settlement and a release should have been conditioned upon payment of all costs from the beginning of the action.

[Ed. Noté.—For cases in point, see Cent. Dig. vol. 89, Pleading, § 833.]

p. 253

Appeal from City Court of New York, Special Term.

Action by John J. Buser against Ernestine Jacobowsky. From an order allowing defendant to serve a supplemental answer, plaintiff appeals.

Modified and affirmed.

Argued before GIEDERSLEEVE, P. J., and GIEGERICH and GREENBAUM, JJ.

August P. Wagener, for appellant.

E. Sidney Berry (James B. Henney, 'of counsel), for respondent.

Plaintiff appeals from an order of the City Court of New York granting leave to defendant to serve a supplemental answer in an action for personal injuries, setting up a settlement with and a general release from the plaintiff. The motion was opposed below on the ground that the action was settled without the knowledge, consent, or authority of the plaintiff’s attorney, who, at the time of the settlement had a contingent interest in the recovery, to the knowledge of defendant and her attorney. The grounds urged for a denial of the motion were insufficient. O’Brien v. Met. St. Ry. Co., 27 App. Div. 1 , 50 N. Y. Supp. 159 ; Zaitz v. Same, 52 App. Div. 626 , 65 N. Y. Supp. 395 ; Varriale v. Same, 54 App. Div. 633 , 66 N. Y. Supp. 559 . The motion was properly granted, but it should have been upon “payment of all costs from the beginning of the action.” Varriale v. Met. St. Ry. Co., 54 App. Div. 633 , 66 N. Y. Supp. 559 .

The order appealed from should be modified so as to provide for the payment of costs as above indicated, and, as so modified, affirmed, without costs of this appeal, but with disbursements to the appellant.