Whiteman v. Siebert

Headnote

. Substitution of Attorneys.

Where a lawyer and a collection agency represent plaintiff in a case, and plaintiff has an unsatisfied judgment against the agency, on motion of plaintiff to substitute another as his attorney the court will not order plaintiff to pay any money to such attorney and collection agency, as a condition for procuring the substitution.

Appeal from special term, New York county.

Action by Abram V. Whiteman against Julius Siebert. From an order substituting Fernando Solinger as attorney in the place of Francis T. Magill, the latter appeals.

Affirmed.

The following is the opinion of the lower court (OLCOTT, J.):

A motion may be renewed, without leave of court, upon a new state of facts arising after the denial of the motion. Since February last, when Mr. Justice Oonlan denied a motion herein of the same import as that now made, two things have transpired: First, a court of competent jurisdiction has found that the law agency is indebted to the plaintiff herein upon a prior transaction; and, secondly, many months have elapsed, during which neither the agency nor its attorney has progressed this action at all. Its excuse for this inaction— that the plaintiff would not communicate with it—is not sufficient. It would be strange if he would take any other course while he had an unsatisfied judgment against the agency, arising from its failure to account to him for a prior collection which it made for him. No excuse whatever is offered by the agency for not at least putting this case on the calendar. With the above-mentioned unsatisfied judgment against the agency, it would be preposterous to order this plaintiff to pay it any money as a condition for procuring the substitution now asked for: nor do I think that the plaintiff should be forced to wait for his relief until the result of the unsecured appeal which the agency has taken from said judgment has been determined. Motion for substitution of attorneys granted.