Irvine v. Amasa Spring — 30 N.Y. Super. Ct. 293

Majority

p. 293

Margaret Irvine, plaintiff, vs. Amasa Spring et. al. defendants.

Headnote

An attorney’s clerk, however extensive his general powers may he, can not discontinue an action without the consent of his principal.

(Before McCunn, J. at special term,

May —, 1865.)

Motion by the plaintiff to set aside an order entered for the discontinuance of this action.

P. Y. Gutter, for the motion.

Mr. Niles, opposed.

In this case it appears that a trial was had at the circuit, on the 9th day of Hovember, last, before a jnry, and the plaintiff recovered a verdict for $400; that before judgment was perfected, or costs taxed, Mr. Hiles, the defendant’s attorney, approached a person by the name of Walsh, who had at times acted as clerk in the office of the plaintiff’s attorney, and procured from him, unknown to the plaintiff’s attorney, a consent to the effect that an order might be entered discontinuing the action on payment of $400, the amount of the verdict, saying nothing of the costs. On this consent, an order was accordingly entered, discontinuing the action.

It is quite clear, that no clerk, however extensive his general powers may be, can discontinue an action without the consent of his principal. Indeed, the courts are so jealous of the interests of the different suitors that they will only allow an attorney to give a satisfaction piece within two years after entry of judgment, and that on receiving the full amount of the claim.

The person claiming to be the clerk of the plaintiff’s

p. 294

attorney, and who consented to the entry of the order for discontinuance, makes two affidavits on this motion, one for the plaintiff and one for the defendant*; and as there was some slight contradiction in the affidavits, I ordered the appearance of Walsh in court and examined him. I then learned that Mr. bTiles handed $55 to Walsh individualy, in consideration that he, Walsh, would receive the certified check of $400 for Mr. Cutler, and sign the consent to enter the order of discontinuance.

Under such a state of facts, I deem it my duty not only to set aside the order of the 20th of December, unconditionally, but to deny the defendants’ attorney’s request for time to make a case.

Motion granted, with $10 costs.