Attleboro National Bank v. Jacob Wendell — 46 N.Y. St. Rep. 140

Majority

p. 140

The Attleboro National Bank, Resp’t, v. Jacob Wendell et al., Appl’ts.

(Supreme Court, General Term, First Department,

Filed May 13, 1892.)

Headnote

Attorneys—Liability for costs.

The attorney for plaintiff brought this action in good faith, being imposed upon by persons professing to represent the bank, but the bank in fact had long before ceased-to exist. Defendants having recovered judgment for costs, Held, that the attorney should be required to pay such costs.

Appeal from order denying motion requiring plaintiff’s attorney to disclose to the attorney for the defendant Wendell what bank, if any, is the real plaintiff in this action, and where it is located and does business, or if there be no such bank, why said attorney should not himself satisfy the judgment for costs rendered in this action.

G. A. Strong, for app’lts; J. J. Adams, for resp’t.

It is alleged in the moving affidavit upon information and belief, and not denied by the opposing affidavit, that this action was brought in the name of a bank which went, out of existence a number of years before the suit was instituted.

Under these circumstances there is no plaintiff in existence from whom the defendants can collect the costs awarded to them; nor was there any such plaintiff in existence when the action was brought. It follows that the attorney who inadvertently brought the suit, and thus subjected the defendants to the litigation which has resulted in this judgment for costs against the plaintiff, should be required to pay such costs.

There is here no question but that the attorney acted in perfect good faith in bringing the suit; and his liability rests upon no fact which affects in the slightest degree his professional position. He was himself practically imposed upon by others who professed to represent this non-existent bank. Believing in their authority and in the existence of the client, he brought the suit which has resulted in this bill of costs. His liability rests upon the fact that as an attorney he has brought the defendants into court, without authority from any existing principal or client, and has subjected them to the litigation which has resulted in the manner indicated. As the defendants have succeeded in that litigation, it will not do to say that the costs awarded against the nonexistent plaintiff shall forever remain unpaid and unsatisfied. If the attorney had required from an existing principal actual authority to bring the suit, he would not have been in the position in which he now stands. Having proceeded without such authority, the

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reasonable conclusion is that he must satisfy the judgment which the defendants have secured against his assumed principal.

The order should, therefore, be reversed and an order made requiring payment of the judgment for costs, together with the disbursements of this appeal.

Van Brunt, P. J., O’Brien and Barrett, JJ., concur.