Majority
p. 1027EVANS v. MULLER. (Supreme Court, Appellate Division, First Department. July 8, 1902.)
Headnote
1. Discontinuance.Defendants and their attorney entered into an agreement whereby they reserved the right to settle or compromise at any stage of the case. They availed themselves of this right, and agreed to accept a comprumise. Out of the moneys to be paid defendants, a sum equivalent to the percentage to which the attorney was entitled was reserved for him. He had served no answer, and averred that he could not do so, because defendants refuse to verify one. He was not a party defendant himself, and was not entitled to answer in his own behalf. Reid, that plaintiff’s motion to discontinue was properly granted, against the objection of defendants’ attorney.
Appeal from special term, New York county.
Action by Rudolph H. Evans against Charles F. Muller. Order of discontinuance, and defendant appeals. Affirmed.
p. 1028The following is the opinion of the court below (Scott, J.): The agreement between Mr. Keane and his clients has been three times before the appellate division, and it has on each occasion been held that the agreement specifically reserved to each client the right, at any stage of the case, to settle or compromise upon such terms as he might think fit. They have availed themselves of this reserved right, and have agreed to accept a compromise, with which they appear to be entirely satisfied. I cannot say, upon the facts presented, that this settlement was made in fraud of the clients or of their attorney. That the attorney has a lien or •claim upon the sums to be paid his. clients under the compromise agreed to by them is undoubted, and is conceded by all parties. Mr. Huey, the .-attorney selected by the heirs to receive payment from the executors, and distribute it among those entitled thereto, has retained out of the moneys to be paid to Mr. Keane’s clients a sum equivalent to the percentage to which Mr. Keane is entitled upon the sums which those clients have agreed to accept. Mr. Keane has never served an answer in behalf of his clients, and avers very frankly that he cannot do so, because they refuse to verify any answer. He is not a party defendant himself, and is not entitled to answer in his own behalf. With every desire to aid an attorney in the presentation and enforcement of an honest claim, as I have no doubt Mr. Keane’s •claim' is, I can see no justifiable grounds upon which the plaintiff’s motion •to discontinue can be denied. To do so would simply result in keeping alive •a litigation which imposes a cloud upon the estate, and in which Mr. Keane -can, after all is said, obtain no substantial relief. The motion to discontinue will be granted, on payment of Mr. Keane’s taxable costs. Argued before VAN BRUNT, P. J., and HATCH, PATTERSON, INGRAHAM, and LAUGHLIN, JJ.
J. Noble Hayes, for appellant.
Crane & Lockwood (A. B. Crane, of counsel), for respondent.
Order affirmed, with $10 costs and disbursements, on the opinion of the court below.