Ninety-Nine v. Vanderbilt — 11 N.Y. Super. Ct. 632

Majority

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The Ninety-nine Plaintiffs v. Vanderbilt.

Headnote

The court has power to compel an attorney, bringing several suits, on behalf of a number of persons, as plaintiffs, against one defendant, on a state of facts precisely similar in each, to disclose the names and residences of his clients, when required to protect the rights of the defendant.

The Court may also require him to exhibit his authority to bring the action.

(Before Hoffman, J.)

Special Term, Feb., 1855.

This action came before the court on an order to show cause why the plaintiffs should not furnish certain information.

Although the motion was in fact before Justice Hoffman, at Special Term, it was argued before all the Judges, on a motion day in: General Term. The facts disclosed by the papers are aa follows:

There were ninety-nine suits brought in behalf of ninety-nine

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different plaintiffs, against tie proprietor of the line of vessels known as “Vanderbilt’s line for California and Nicaragua.” Nineteen of these suits were brought in the Supreme Court, forty-six in the Superior Court, and thirty-four in the Common Pleas. They were all brought by the same attorney. The causes of action in the suits were alike, the same printed form of complaint being used in each case.

The complaint contained six counts. The ground of each action was, in substance, that the defendant was a common carrier, and owner of a certain line of vessels and conveyances, used in the transportation of passengers and baggage,from the port of New York to the port of San Francisco, in California, by the way of Nicaragua. That on the — day of-, 1852, he received the plaintiff on board of one of the vessels of said line as a passenger, to be conveyed from the city of New York to San Francisco aforesaid, for hire and reward. That it then became his duty to carefully convey him as soon as he reasonably could, without delay — furnish him with bed and accommodation, good and sufficient food, &c.; to have provided sufficient room, and not to have overcrowded the same. The complaint then stated various violations and neglect of the obligations thus assumed, the injury and damage resulting from them, and demanded judgment for the damages.

Early in October, 1854, the defendant obtained in the Superior Court an order in the suits brought in that court, requiring the attorney for the plaintiffs to show cause as follows:

1. Why he should not furnish to the attorney of the defendant, a sworn statement, showing the Christian names in full, and the residences of the plaintiffs in the actions respectively, and specifying the state, county, and town, or village, where such plaintiffs respectively resided; and if they, or any of them, resided in a city, the street and number of their residence.

2. Why he should not be required to produce such plaintiffs personally in court, or to furnish proof that the plaintiff in each case is living.

3. Why he should not furnish proof of his authority to prosecute the actions, and disclose the means by which such authority was communicated; if in writing, why he should not deposit the writing with the clerk.

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4. Why lie should not (in ease the court should permit the actions to proceed) file security for costs in those actions in which the plaintiffs should appear to be non-residents of the state.

5. Why (if the court should permit the actions to proceed) the complaints should not be set aside as not conformable to § 142 of the Code; or why the plaintiffs should not be compelled to elect on which of the counts or causes of action they would rely, and why the residue should not be stricken out.

6. Why the proceedings in all the actions except one, should not be stayed, until such action should be determined; and why the defendant should not have such other order as might be proper.

From the affidavits on the part of defendant on which this application was based, it appeared that the defendant was the owner of the line called Yanderbilt’s line for California and Nicaragua; but was not the owner of the S. S. lewis, the vessel by which passengers were to be carried from San Juan del Sur to San Francisco. It was between these two latter points that the delay complained of, took place. One D. B. Allen was, however, agent for the whole line, and he sold tickets to San Francisco, to passengers, at the only office of the defendant’s line. Allen, as agent of the line, engaged the S. S. Lewis to sail from New. York in March, 1852, to go to San Juan del Sur, and take passengers from thence to San Francisco; but she was delayed in going.round Cape Horn, .in consequence of which the passengers were delayed at San Juan del Sur, and obliged to betake themselves to a sailing vessel, of which Mead & Co. were agents, to take them to San Francisco. It was also stated that Mead & Co. received in payment for the passage on board their vessel, the tickets issued by Allen for the S. S. lewis.

The affidavits also stated that some of the plaintiffs were, dead,— that some of the complaints did not furnish the full Christian names of the plaintiffs, but only their initials, — that the attorney of the plaintiffs being called upon for his authority to commence these suits, declined to exhibit any-except the passenger tickets for the S. S. lewis, issued by Allen.

Mead. & Co. reside at San Juan del Sur. One of that firm, however, being casually in New York, made affidavit that they authorized the suits, and did so by virtue of a verbal and written

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power of attorney from each, of the plaintiffs, and that the written power had been burnt.

An application substantially similar was subsequently made in the Supreme Court, and also in the Common Pleas, in the suits brought in those courts. After argument, in each court, a consultation upon the subject was had among the judges of the three courts, and they agreed in opinion that they might, and under the circumstances ought to, require the attorney of the plaintiffs to disclose the names and residences of his clients, and his authority to bring the suits. The decision to this effect was rendered early in January; and an order requiring the attorney to furnish that information, and meantime staying proceedings in the several suits until further order of the court, was drawn up by Mr. Justice Hoffman of the Superior Court, and Judge Woodruff of the Common Pleas, and was made and entered in each of the suits in those two courts. This order„is given in full in the opinion of Mr. Justice Hoffman, below. The order in the Supreme Court was left to be settled-pursuant to the opinion rendered in that court.

W. Silliman attorney for plaintiffs, and of counsel.

JET. F. Clark attorney for defendant, and of counsel.

(Orally.) — A question presented in this case is, how far this court can control the action of its attorneys. Upon consideration, we have come to the conclusion, both on principle and authority, that we have the power, and that it is our duty, if the case demands it, to order the attorney to disclose the residence and occupation of his clients, who they are, and where they are to be found.

The defendant cannot always be aware who are his opponents. It may happen, and in this case it does, that he may be attacked by a number about whom he knows nothing. We think this power is involved in the general powers of the court over its attorneys. We have therefore made an order, — in concurrence, I may remark, with the Judges of the other courts, — the substance of which is, that the attorney, by affidavit, should disclose formally what he has probably disclosed in effect in the other courts. The reasons for our decision are more fully stated in an opinion

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by one of the justices of the court. The questions as to a stay of proceedings, and the right of the plaintiffs to go on with the suit, may be considered hereafter.

(after stating the facts in the case at length.) — 1. The authorities cited are decisive of the right of. the court to call for the residences and occupations of the plaintiffs respectively. In Johnson v. Birley, (5 Barn & Ald. 540,) this was done in the case of an assault, where numbers were present,'and the defendant could not ascertain on inquiry, who the plaintiff was. The court said that the rule had generally been confined to actions of qui tam and ejectment, because it is only in such cases that the defendant is generally ignorant of the plaintiff or his person. Bayley, Justice, said, that previous to the statute of‘Westminster, a plaintiff appeared in person, unless he had a special writ, authorizing him to appear by attorney. Then the pleadings were ore temes, and a defendant had the privilege of seeing and knowing who the plaintiff was. After stating some further reasons, he says: — It is necessary, in order that both parties may have a fair trial, that the information required by this rule should be given. In Worten v. Smith, (6 J. B. Moore, 110,) which was an action on the case for a libel by three plaintiffs, a rule was made absolute that the plaintiff give the particulars, in writing, of the places of residence and occupations of the two other plaintiffs, and in the mean time, all further proceedings to be stayed. It was submitted that the knowledge was important to enable the defendant to justify or otherwise tp shape his defence. See also McRoeman v. Patrick, (4 Howard’s Miss. R. 533,) and West v. Houston, (3 Harring. 15.) The good sense of such a rule is apparent, wherever the justice of the case seems to require its application.

It is here sworn that several of these nominal plaintiffs are dead, and facts are stated to show that some others are probably so. Again, it is not improbable that Mead & Co., of San Juan del Sur, hold the whole or most of these tickets as beneficial owners or assignees. See affidavit of Thompson and Cross. The defendants are entitled to the names of the plaintiffs, and their residences, to prove this fact by their own evidence if necessary, and to show that Mead & Co. have the right to sue. Again, he has a right to such information, in order to enable him to obtain security for

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costs from non-residents. And as it appears that many of them ■were forwarded by Mead & Co., from San Juan del Sur to San Eraneisco, by sailing vessels in 1852, the presumption is strong that some of them are non-residents. The difficulty of complying with such a requisition in this case, forms no objection to its being made. We consider that an attorney, who sues in a court, is bound to know the place of residence and occupation of his client, that it may be disclosed if the rights of the defendant require it. This part of the application must be granted.

2. The next branch of the motion relates to the exhibition by the attorney, of his authority to sue in the mames of these numerous plaintiffs. It is true, that in general, the authority of an attorney is to be presumed from his appearing on the record. And the statute has only expressly provided for the production of his power in cases of ejectment. (2 Rev. Stats. 4th ed. 567, § 12.)

But the present case is very peculiar. Upon the affidavit produced by the defendant, it is made out, that certainly many of these passage tickets have been transferred to Mead & Co., and are, perhaps, owned by them. The right of action.to all such is, it may be assumed, vested in that firm. A single suit, then, in their name, for all such tickets would be the proper and the only action which could be sustained, to such extent as any right of action was assignable. It appears, by the affidavits produced by the plaintiffs’ attorney, since the argument of this motion, and agreed to be used by us, that a power or powers of attorney, were executed by a number of the plaintiffs to Mead & Co., authorizing them to employ attorneys and counsel, for the purpose of enforcing their claims. It is alleged that this power has been burnt. It is not alleged that a draft or copy is not in existence, nor that the parties cannot give a satisfactory statement of its general contents. If the draft or copy was directed to the attorney, no doubt the court would ask for its production. The case cannot be varied, where it is an authority to another, to employ the attorney. In various cases, the undoubted right of the court to call for an exhibition of the power of an attorney is declared. In a few it is considered as an absolute unqualified right of the defendant. Thus, in Clark v. Holliday, (9 Miss. R. 711,) it was held that the court would inquire, whenever requested, into the authority of an attorney to appear. The court in Tennessee recognized the same rule

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in Gillespie's case, (3 Yerger, 325.) In McAlexander v. Wright, (3 Monroe's R. 194,) it was so far qualified as to impose upon the defendant the task of showing that his rights might he jeoparded, unless it was observed. The general power was recognized in Allen v. Green, (Bailey’s R. S. Car. 448.) See also Cantwell v. Merrifee, (2 Pike R. 355,) and West v. Houston, (3 Harring. 15.) In 5 Halstead, 251, it was held that it was not the proper subject of a plea that the attorney had no authority -to prosecute the suit. The proper mode was by motion to the court to stay proceedings. It seems to be the settled law in England, that if a plaintiff questions the attorney’s power to sue for him, and makes an affidavit. denying it, nothing but a written authority will suffice. (Maires v. Maires, 23 Eng. Law & Eq. R. 22; Allen v. Bone, 4 Beavan, 493.) We consider the circumstances of this case as calling upon the court to exercise its power, to require the best and most perfect exhibition of the power under, which he acts, that can -be given, the original authority under which his authority is derived, being lost. The order will be as follows:

Upon reading and filing the order to. show cause herein, and the affidavits of the defendant and William K. Thome and others, submitted on the part of the defendant, and also the affidavits of William Silliman, Esq., and William H. Mead, submitted on the part of the plaintiffs respectively, and also upon reading the several complaints of the said respective plaintiffs, and, on hearing of counsel in behalf of the parties respectively, — it is, on motion of Horace E. Clarke, Esq., of counsel for- defendant, ordered,

That the attorney for the plaintiff, in the several above entitled causes, furnish in writing and verify by oath, to the attorney for the defendant, the names and present places of residence off the said plaintiffs respectively, in the manner and to the extent specified in the order to show cause; that is to say, with the Christian names of the plaintiffs in each of said causes in which such Christian name is not stated in the complaints respectively, and specifying the state, county, town, and village where each of the plaintiffs respectively resides, and if they, or any or either of them, reside in a city, then giving the street and number of such residence, and also specifying the occupation of the plaintiffs respectively.

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And it is further ordered, that the said attorney for the plaintiffs in the said above entitled suits do also deliver to the attorney for the defendant a sworn copy of the power of attorney under or in pursuance of which the said suits are alleged to be instituted, mentioned in the said affidavit of William H. Mead so Tead and filed on the behalf of the said plaintiffs upon this motion, and therein stated to have been executed by the said several plaintiffs to the said Mead, if the draft or- any copy of the said power of attorney or written authority is in existence, and if not, then that he deliver a statement, verified by oath, of the substantial contents, extent, purport, and effect of the same, and of the powers conferred therein, and the consideration expressed therein or upon which the same purported to be given, the interest, if any, thereby given or purported to be given to the said Mead, or to Mead <& Co., and for whose use and benefit the suits alleged to have been thereby authorized were to be prosecuted, and at Whose risk, cost, and expense, so far as such particulars or any or either of them were contained in such power of attorney or written authority, and as nearly in the words of the said power as he may be able to furnish the same, or as may be practicable.

And all proceedings in the said several suits are hereby stayed until the further order of this court, with leave to either party to apply to the court for further or other relief, as he maybe advised.