Rector v. Rector — 38 N.Y. St. Rep. 919

Majority

p. 919

The Rector, etc., of Holy Trinity Church of Harlem, Etc., App’lt., v. The Rector, etc., of the Church of St. Stephen and James Blackhurst, etc., Resp’ts. The People ex rel. The Rector, etc., of the Church of St. Stephen, App'lt, v. James Blackhurst, as Treasurer, etc., Charles E. Fleming et al., Respt’s.

(Court of Appeals,

Filed June 23, 1891.)

Headnote

Appeal—Court oe appeals—Withdrawal oe appeal.

Where the wardens and vestrymen of a religious corporation have authorized the withdrawal of an appeal to this court through attorneys named for that purpose, the objection of an attorney who has previously acted for the corporation under a previous management, cannot avail as against the desire of the corporation where he has ceased to represent it.

Application by appellant to withdraw appeal from judgment of supreme court, general term, first department

Wager Swayne, for app’lt; Wm. H. Hamilton, for resp’ts.

The motions upon the petitions for the withdrawal on the above entitled appeals should be granted.

The objections of Andrew J. Shipman, who has claimed to be attorney for the corporation of the church of St. Stephen, cannot avail against the desire of that corporation as expressed by the vestry. The wardens and vestrymen elected at the Easter election, 1891, represent the corporation appellant in the above action and proceeding, and they have authorized the motions now made through attorneys named for that purpose. To permit the appeals to continue to be prosecuted would be to deny the right to an appellant to discontinue litigation ; with no other reason than to gratify the wishes of an attorney who, whatever the foundation of his original authority to appear, has ceased to represent the litigant. There is nothing in the procedure which is objectionable, and we see no reason for denying the appellants’ applications.

There will be no costs awarded to any of the parties as against the other, except ten dollars costs of each of the two motions against the attorney Shipman in favor of the corporation of the church of St. Stephen.

All concur, except Finch, J., absent.