Stilwell v. Armstrong — 59 N.Y.S. 671

Majority

p. 671

(28 Misc. Rep. 546.)

STILWELL v. ARMSTRONG.

(Supreme Court, Appellate Term.

July 26, 1899.)

Headnote

Attorney and Client—Dismissal of Appeal—Consent of Attorney—Contingent Fee.

An appeal by defendant from a judgment in favor of plaintiff will not be dismissed on motion of defendant’s attorney, in pursuance of an agreement between the parties settling the case, where plaintiff’s attorney, who has a one-half interest in the amount recovered, objects to dismissal,

p. 672

and no payment or tender of accrued costs is made; and where no further appearance is made by defendant the judgment will, on motion of plaintiff’s attorney, be affirmed, with costs.

Appeal from municipal court, borough of the Bronx, Second district.

Action by Lillian B. Stilwell ¿gainst Abner Armstrong. There was a judgment for plaintiff, and defendant appealed.

Defendant moved for leave- to withdraw the appeal, which was denied, and, there being no further opposition, the judgment was affirmed.

Argued before FREEDMAN, P. J., and MacLEAN and LEVEN-TRITT, JJ.

P. A. McManus, for appellant.

Harry Overington (George F. Langbein, of counsel), for respondent.

The plaintiff having recovered judgment, the defendant took and perfected an appeal therefrom, and had the cause placed upon the calendar of this court for the May term. Upon the call of tire calendar, the defendant’s counsel moved ore tenus for leave to withdraw the appeal on the ground that the parties had settled their differences. The motion was not entertained, because not based upon written proofs, and not made upon notice. When the cause was called on the calendar of this (June) term, the defendant moved for leave to withdraw the appeal, without costs, upon a notice of eight days,.and upon an agreement between the parties, under seal, disposing of and settling their differences, and consenting to the discontinuance of the appeal without costs to either party as against the other. In opposition, the attorney of the plaintiff showed by affidavits that he had not been relieved from or asked to abandon hi's representation of the plaintiff, and that he was interested in the action to the extent of one-half of any recovery by the plaintiff. Under such objection, coupled with substantial interest of the plaintiff’s attorney in the cause of action, and no payment or tender having been made of the costs already accrued, the motion must be denied. No appearance or opposition, except as above, being offered, the judgment must, upon the motion of the respondent, be affirmed, with costs.

Judgment affirmed, with costs to the respondent. All concur.