People ex rel. Morgan v. Board of Supervisors — 39 N.Y. St. Rep. 798

Majority

p. 798

The People ex rel. Charles V. Morgan, Resp’t, v. The Board of Supervisors of Westchester County, App’lt.

(Supreme Court, General Term, Second Department,

Filed July 2, 1891.)

Headnote

1. Costs—Additional allowance—Taxpayer's action.

An action brought by a taxpayer to restrain the board of supervisors from levying a tax of $25,000 to pay illegal appropriations made by a town auditing board, involving considerable work in procuring affidavits, arguing motions and preparing for trial, is a difficult and extraordinary one within the meaning of § 3253 of the Code, and an allowance of $1,000 to plaintiff’s attorney is proper.

2. Same—Attorney and client—Stipulation.

A stipulation by a defendant’s attorney for the entry of judgment and the granting of an allowance to plaintiff is within his authority, and must be held binding unless impeached for want of power.

Appeal from that part of a judgment which gave to plaintiff’s attorney costs and an extra allowance of $1,000, and from order denying motion to retax costs.

The plaintiff began an action under the statute for the protection of taxpayers to restrain the defendant from levying $25,000 of taxes illegally and fraudulently appropriated by the town meeting of Eastchester, for highway purposes, upon the town of Eastchester.

Upon the summons, complaint and affidavits an injunction was granted, which was made permanent

A new board of supervisors was subsequently elected and called

p. 799

together to pass the illegal and fraudulent appropriations, on the theory that the injunction did not bind them, and the plaintiff was obliged to and did obtain a new and further injunction, which was made permanent, and William J. Marshall, Esq., the attorney for the defendant, stipulated that the facts alleged were true, and consented that final judgment should be entered therein, with costs and allowance of $1,000 to plaintiff’s attorney.

The court granted an allowance of $í,000, and the costs were inserted as per stipulation at $102.09, and judgment was entered therein on or about January 23, 1890.

Wm. Romer, for app’lt; Henry W. Bates, for resp’t.

—The bills of costs and allowance complained of were taxed and allowed on consent of the attomies, and, under all the circumstances, we think the court below was justified.

The bill of defendant's attorney has been audited and allowed, and the litigation ended under the stipulations made by the attornies.

The defendants have been guilty of laches in moving to correct the judgment, and if their attorney exceeded his authority or committed any wrong by which they were damnified, their remedy is against the attorney.

The judgment seems to be satisfactory to defendants except the items of costs and allowance, and it seems to be a case where the ■defendants wish to avail themselves of the benefits of a judgment while avoiding the stipulation under which it was entered.

If the services of Marshall were worth $500, and, as said before, his claim has been allowed, then the services of plaintiff’s attorney were well worth $1,000.

The defendants assumed to defend the suit and they were proper parties and must pay any costs legally awarded.

The plaintiff was obliged to institute the suits, and the amount involved was $25,000; besides, there was considerable work in procuring affidavits, arguing motions and preparing for trial

We think, under the construction given to the Code upon this subject, the case was difficult and extraordinary.

The suit was meritorious and by it an expenditure of $25,000 was saved.

It has been held that an allowance can be made upon a discontinuance before trial and that in a suit to restrain a tax an allowance is proper. Coffin v. Coke, 4 Hun, 616 ; Robins v. Gould, 1 Abb. N. C., 133 ; McDonald v. Mallory, 46 N. Y. Supr., 58; Comins v. Supervisors of Jefferson Co., 3 T. & C., 296.

The stipulation of defendants’ attorney was within his authority and must be held binding unless impeached for a want of power. Palen v. Starr, 7 Hun, 422 ; Ferguson v. Crawford, 86 N. Y., 609 .

When we consider that no fraud is alleged, that the judgment was consented to and acquiesced in by defendants, and all the other facts and circumstances, it seems that the judgment and order ought to be affirmed.

Barnard, P. J., concurs; Dykman, J., not sitting.