Gall v. Funkenstein

Headnote

Attobney—Effect of unauthorized appearance.

Even the unauthorized appearance of an attorney gives validity to the proceeding against the client, and the remedy is either against the attorney or by motion in the action.

Appeal from an order refusing to give leave to defendants to withdraw a notice of appearance except on conditions.

The decision of Cullen, J., who tried the motion at the special term was as follows: Even the unauthorized appearance of an attorney gives validity to the proceeding against the client, and the remedy is either against the attorney or by motion in the action. Brown v. Nichols, 42 R. Y., 26; Denton v. Noyes, 6 J. R,, 296,

Assuming which, 1 doubt that tho appearance of the attorney was unauthorized. What relief should be afforded to the defendants depends on the circumstances of the particular case. This action relates to real property within the state. The defendants, therefore, can be brought into court, though no^-residents. They have, therefore, lost no rights by the mere appearance of the attorney. But they are in default, having failed to answer. From this they may be relieved. If they desire another attorney, he may be substituted for the one that has appeared. This will amply protect the defendants from the consequence of the alleged unauthorized appearance.

Further than that, I think the court ought not to go.

Defendants will be given leave to withdraw appearance already served, on condition that they appear and answer in the action within five days, and stipulate that the cause may proceed to trial as of the date of the issue hitherto joined. In default of such stipulation, motion denied.