Webb v. Milne — 1 N.Y. St. Rep. 237

Majority

p. 237

Webb v. Milne, as executor, etc.

(New York Superior Court,

Special Term,

Filed July 20, 1886.)

Headnote

Attorney and client—Appeal—New attorney may take appeal.

Employment of attorney of defeated party ceases with judgment. A new attorney may appear and take an appeal without substitution.

Motion for time to serve case made on behalf of plaintiff by an attorney, who was not the attorney for the defeated party below, and who has served a notice of appeal signed by himself as attorney for the appellant. Motion resisted on the ground that the appeal was invalid.

Edward O. Perkins, for defendant.

F. J. Morrison, for appellant.

I think the notice of appeal in this action is valid. Section 1300 of the Code prescribes how a notice of appeal shall be served. There is no express provision as to the way in which the notice should be signed. By section 55 it is provided that if the party has an attorney in the action, he cannot appear to act in person where an attorney may appear or act either by special provision of law or by the course or practice of the court.

That the appellant had an attorney in the action which resulted in the judgment against him is admitted, but by the entry of the judgment that action was ended and the functions of the attorney ceased.

The employment of a new attorney to prosecute the appeal was, in effect, a substitution of attorneys; and it appearing that the attorney signing the notice of appeal had authority from the appellant to take such an appeal he was the attorney for the appellant in this action, and the notice of appeal was regular.

In Ward v. Sands ( 10 Abb. N. C. 60 ), Justice Barrett held that the employment of an attorney other than one who obtained the judgment, after the entry of the judgment, to enforce the judgment, was a substitution of attorneys so that subsequent service of papers for a motion to vacate the judgment is properly made upon such new attorney, and if that would be so where an attorney was

p. 238

employed to collect the judgment, it must also be so where the object is to review the judgment.

Under the circumstances, I think the plaintiff should be allowed to serve the case on appeal within ten days on paying ten dollars costs of this motion.