Roberts v. Union Elevated Railroad — 91 N.Y. Sup. Ct. 437

Majority

p. 437

Emma Roberts, Respondent, v. The Union Elevated Railroad Company, Appellant.

Headnote

Satisfaction of a judgment without the attorneys knowledge — set aside to the extent of the costs.

When, pending an appeal from a judgment recovered in an action in favor ot tlie plaintiff, a settlement is made and the - judgment is satisfied without the knowledge of the attorney for the plaintiff, a motion made by the plaintiff’s attorney to set aside the satisfaction of the judgment is properly granted to the extent of the amount of the costs included therein .

Appeal by the defendant, The Union Elevated Railroad Company, from an order of tlie Supreme Court, made at the Kings County

p. 438

Special Term and. entered in tlie office of tlie cleric of tbe county of Kings on tbe 12th day of July, 1893, granting tlie plaintiff’s motion to set aside tlie satisfaction of judgment entered in tlie action to tlie extent of tbe taxable costs, and also from an order entered in said cleric’s office on tbe 7th day of September, 1893, denying the defendant’s motion for an order for leave to reargue tbe plaintiff’s motion to set aside the satisfaction of the judgment.

Wm. N. Gohen and Alfred Lmderbaeh, for tbe appellant.

Stephen M. Hoye and Frameis IiusseTl Whitney, for the despondent.

Tbe plaintiff recovered a judgment against tbe defendant in this action for $175 damages and $73.11 costs, which made together $248.11.

The defendant appealed from the judgment, and pending tlie appeal a settlement was reached between the parties without the knowledge of the attorney for the plaintiff, through the intervention of William R. Grace.

The sum paid upon such settlement was $225, of which Grace received $50 and the plaintiff $175, the amount of her verdict.

Thereupon a motion was made by the plaintiff’s attorney to set aside the satisfaction of the judgment; that motion was argued and an order was made setting aside the satisfaction of the judgment to the extent of $73.11, the costs of the plaintiff’s attorney, which he was allowed to collect.

The defendant appealed from that order, and while the appeal was pending the defendant made a motion for a reargument of the original motion; that motion was denied, and the defendant has appealed from that order also.

These orders are so obviously right and just that argument or authority in their support are unnecessary, although the orders are well sustained by both. Both orders should be affirmed, with ten dollars costs and disbursements.

Pratt, J., concurred; Cullen,- J., not sitting.

Orders affirmed, with ten dollars costs and disbursements.