Hulburt v. Defendorf — 12 N.Y.S. 673

Majority

p. 673

Hulburt v. Defendorf. Chase v. Same.

(Supreme Court, General Term, Fifth Department.

January 23,1891.)

Headnote

Towns—Actions against—Compromise by Supervisor.

In an action against a town supervisor a judgment for $800 was recovered against defendant, who appealed. Afterwards, on a petition signed by a supposed majority of the town electors, plaintiff and defendant in good faith entered into a stipulation to compromise the claim by paying plaintiff $400 and abandoning further litigation. Thereupon leave was obtained from the special term to withdraw the notice of appeal, and the general term granted an application to dismiss the appeal. After the stipulation, and before the appeal was dismissed, a special town meeting was held, directing the supervisor to appeal from the judgment. Meld, that the stipulation would be enforced.

Appeal from special term, Monroe county.

p. 674

Action by Thomas L. Hulburt against Fletcher A. Defendorf, as supervisor, etc. From an order vacating an order which dismissed the appeal of the defendant from a judgment entered upon the report of a referee defendant appeals.

Argued before Dwight, P. J., and Macomber and Corlett, JJ.

Walter S. Hubbell, for appellant. James L. Angle and W. Martin Jones, for respondent.

This action was begun in the month of May, 1889, against one Thompson G. Jones, supervisor of the town of Perinton, in the county of Monroe, to recover for professional services as an attorney and counselor at law, rendered to the predecessor of Jones, supervisor of such town, in an action in which such supervisor defended in behalf of the town. An answer was interposed, and the case was referred to a referee to hear and determine the same. The amount claimed in the complaint by the plaintiff was the sum of $550, but at the trial, upon application, the complaint was amended in the amount of the claim made so as to conform to the proof, and in pursuance thereof the referee reported a recovery in the sum of $804.30 for the plaintiff. Shortly after the entry of the judgment in pursuance of such report negotiations were begun by the then defendant with the plaintiff for a compromise of such judgment, in pursuance of what was then believed to be the public sentiment of a majority of the tax-payers of the town that it would be well to pay one-half of the recovery, besides costs, rather tlian further to litigate the matter. Accordingly a stipulation was entered into between the plaintiff and the supervisor of the town by which, upon the payment of such sum of $400 and the costs as entered in the judgment, with interest thereon from the time of the entry of the judgment, and upon a further consideration that no appeal should be prosecuted from such judgment by which the plaintiff should be put to further costs and expenses in collecting his claim, and the said sum of $400, besides costs, paid on or before the 15th day of February, 1891, then the judgment as entered should be satisfied and the action discontinued. Thereupon the defendant withdrew his notice of appeal to the general term from the judgment which had theretofore been entered and served. Accordingly, upon an application to the special term by both parties, leave, was granted to the defendant to withdraw the notice, of appeal, and in pursuance of the same agreement an application was made to the general term on the '25th day of March, 1890, for the dismissal of such appeal, which was accordingly granted. Prior to this time a town meeting had been held, in which a resolution was passed directing the supervisor to appeal from such judgment. There is not in the papers before us any evidence that the compromise of the judgment was not honestly made, and the agreement entered into for the best interests of all parties to the litigation. It is true that the moving papers allege in a general way that the compromise and the dismissal of the appeal was in pursuance of a conspiracy, yet no fact is stated on which such a conclusion can reasonably be based. The high character of the referee upon whose report the judgment was entered adds strength to the presumption of law that the judgment was correct. So, also, the characters of the attorneys of record preclude any assumption that the agreement by which this litigation was ended was not in ail respects just and fair. It follows, therefore, that the order of the special term, by which the notice of appeal was withdrawn, followed by the order of the general term dismissing such appeal, both done in pursuance of the terms of the written agreement, must be deemed to be valid, and unassailable by motion, unless the same was made contrary to some statutory regulation. The learned judge at the special term, in his opinion, has held that the special town meeting directing that an appeal be taken was binding upon the defendant, and, inasmuch as the plaintiff knew of such meeting, and of the passage of such resolution, he is bound by it as well as the

p. 675

defendant. It is true that any judgment which was recovered against Jones as supervisor of the town of Perinton was, under the Bevised Statutes, (2 Bev. St. p. 474, §§ 102, 103,) payable by the town, after the same had been audited by the town board, or, that failing, after it had been reported to the board of supervisors, under whose direction a provision might be made for levying the same by tax upon the town. But it by no means follows from these provisions of the statute that the defendant had not full control over the management of the case within the ordinary rules governing the rights of parties to actions. If. in making the settlement, the defendant was guilty of any corrupt misconduct in office by which the rights of the town were impaired, an action would lie in behalf of the townagainsthim. Furthermore, had any fact been disclosed upon the motion as contained in the appeal papers that such settlement was in fraud of the rights of the town, or accomplished by means of deception practiced upon the supervisor or upon the court, an entirely different question would arise. In the absence of such evidence, we see no reason why the defendant should not have the power to settle the case in the manner above disclosed. The only objection, that can be made to it is contained in 1 Rev. St. p. 857, § 3, which is as follows: “In all legal proceedings against towns by name, the first process, and all other proceedings requiring to be served, shall be served upon the supervisor of the town; and whenever any such suit or proceeding shall be commenced it shall be the duty of the supervisor to attend to the defense thereof, and to lay before the electors of the town, at the first town meeting, a full statement of such suit or proceeding, for their direction in regard to the defense thereof.” It will be seen, however, that the duty to lay before the electors of the town at the town meeting a statement of the suit or proceeding, so as to receive the direction of the town in regard to the defense thereof, is limited by the words of the statute to legal proceedings taken against the town by name. There is a class of actions, not necessary to refer to in detail, which may be maintained by the parties against the town in its municipal name. The processes in such cases are required to be served upon the supervisor, and he in turn is required" to report the same to the town meeting. But there is no statutory requirement for him to lay before the town meeting, or to accept their instructions, in actions against him in his individual name, and consequently an honest settlement of any litigation made by him ought to be deemed to be conclusive in behalf of the other side to the controversy. It was suggested in the opinion below that, if the contention made in behalf of the plaintiff that an actual majority of the electors of the town of Perinton were in favor of this compromise and settlement of the action and dismissal of the appeal, such fact might be ascertained at the next town meeting. But it seems to us that the decision of the courts ought not to be required to hang upon the votes of the electors of the town in such a matter as this. Six hundred taxpayers, being a majority, or at least half, of the whole electors, had signed a petition for the settlement of the suit in pursuance of the action of the supervisor. A mere handful of electors assembled at the town meeting, under political manipulation, have passed a resolution asking that the order permitting such settlement be set aside, and the appeal from the judgment be prosecuted. Yet, as pointed out above, the decision of two courts had been taken, upon agreement of the parties to the action, honestly made without any pretense of deceit or overreaching by either side. Should we sustain this order, we might again, after the next March town meeting, with a different result of the annual voting of the town, be called upon to revise our present action, and restore the order originally made.

The case of William P. Chase against the same defendant, which was argued with this case, and upon the same facts, must, under the stipulation, abide the result of our determination in this action.

p. 676

It follows, therefore, that the order appealed from should in each case be reversed, with $10 costs and disbursements. Also that the original motion, made and heard at the time of the hearing of this appeal, to vacate our order of March 25, 1890, must be denied, with $10 costs. All concur.