Beneville v. Whalen — 16 N.Y. St. Rep. 672

Majority

p. 672

Emile Beneville, Resp’t, v. John Whalen as Receiver, App’lt.

(New York Court of Common Pleas, General Term,

Filed, May 18, 1888.)

Headnote

1. Injunction—Employment of counsel not in violation of order RESTRAINING ASSOCIATION FROM TRANSACTION OF BUSINESS ON APPOINTMENT OF RECEIVER.

In the action in which the defendant was appointed as receiver the association for which he was to act in that capacity was enjoined from the transaction of any business by an order to show cause. Held, that it was no violation of the order for the association to retain this plaintiff as counsel for its defense.

p. 673

% Same—Compensation after appointment of receiver in discretion OF COURT APPOINTING RECEIVER.

Held, that the counsel retained by the association might maintain action for services rendered previous to the appointment of the receiver, but that his compensation subsequent to that rested in the discretion of the court appointing that officer.

3. Objection—When may be allowed to be first made on appeal.

Held, that a recovery for the whole period of employment having been allowed, though no objection was made upon the trial, yet a motion for a new trial having been made, the objection might be entertained on appeal.

•4 Counsel—Employment of—Prima facie evidence of.

Held, that the judgment record in the action in which the plaintiff was employed was prima facie though not conclusive evidence of his employ ment.

Emile Beneville, resp’t in person; Blandy & Hatch, for app’lt.

In the action in which the defendant was appointed receiver, viz.: Biglin v. Murray, as president of the Friendship boat club, a voluntary association, the association was enjoined from transacting any business by the order to show cause, but it was nevertheless quite proper for the club and its president to take measures for its protection in that action and to employ attorney and counsel. The court which granted the order to show cause certainly did not intend that the injunction contained in it should operate to prevent the defendant therein from seeking legal assistance in making response to such order. There was therefore no violation of the mandate of the court in retaining this plaintiff to advise and defend the association.

But the appellant is right in his contention that the association had no power to pledge the funds or property subsequently committed by the court to the custody of its •receiver, to the expense of legal proceedings had after the appointment of such receiver. The attorney and counsel retained by the club may maintain an action for services rendered up to the time of the appointment but not after-wards; his compensation for services subsequent to the appointment resting in the discretion of the court appointing the receiver. Barnes v. Newcomb, 89 N. Y. 108 .

The recovery in this action was for $275, upon evidence of all the services rendered by respondent before and after the receiver was appointed. It was error to allow a recovery as matter of right to that extent, and although no objection was made on the trial to the evidence offered, and the point is taken for the first time on appeal, we ought as a motion for a new trial was made, to entertain the objection and order a new trial. Maier v. Homan, 1 Daly 168 .

In view of certain exceptions to rulings upon the trial it

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is proper to say that in our opinion the judgment record was prima facie evidence of the employment of the attorney for the defendant therein but not conclusive and that it was not necessary for him to prove a resolution of the club retaining him to defend.

The judgment should be reversed and a new trial ordered with costs to abide event.

Bookstaver and Alley, JJ., concur.

Cases cited

Barnes v. Newcomb 89 N. Y. 108 N.Y. 1882-05-02 p. 673