Phillips v. Wicks — 38 N.Y. Super. Ct. 74

Majority

p. 74

J. LETITIA PHILLIPS v. GEORGE A. WICKS, and another.

Before Monell, Ch. J., at special term.

Headnote

I. AGREEMENT IN RELATION TO THE SUBJECT OF A PENDING ACTION.

1. HOW BKBOBCED.

a. By action only and not by motion.*

Motion to set aside a judgnent.

The plaintiff obtained a judgment against Wicks and

* Attobheys.—The learned judge, in Ms opinion expresses Ms views as to how the agreements of attorneys should be evidenced, as to their authority to vacate judgments, and as to the revocation and suspension of their authority by death ; but the only point decided is that contained in the head note.

p. 75

wife, which upon appeal was affirmed as to Wicks, and reversed as to his wife; and to the latter a new trial was granted.

It is now alleged that thereafter an agreement by parol was entered into between the attorneys of the respective parties, that the action against the wife should be discontinued, the judgment against Wicks set aside, and a new trial had against him, he executing, with approved sureties, and delivering to the plaintiff a bond conditioned to pay any judgment, which, upon such new ri al, might be recovered against him.

Before the agreement was executed the plaintiff's attorney died.

The motion is in effect to require the plaintiff to perform and fulfill such agreement.

Steel & Boyd, for the motion.

J. S. Smith, opposed.

It is very clear, I think, that the relief sought for by this motion, if it can be obtained at all, can be obtained only by action.

In a proper case, with all the parties before the court, an agreement between the parties to an action, made after its commencement, in respect to the subject of it, may very properly be enforced. Especially, if by reason of the agreement, and in reliance upon it, one party has gained an advantage, or the other has lost a benefit. These, however, are too grave questions to be disposed of upon a mere motion.

But there are several reasons for holding that the defendant can not obtain the relief even by action.

First. The agreement was not in writing. It has always been a standing rule of court (Bule 13), that agreements between attorneys shall be in writing, and the courts will not give effect to parol agreements.

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Second. The terms of the agreement were not within the scope of the attorney’s authority. It is not alleged that the authority of the plaintiff’s attorney was more than his general retainer. That did not authorize his vacating the judgment (Quinn v. Lloyd, 7 Robt.. 538).

Third. Even although the general retainer furnished authority, the death of the attorney before the agreement was executed, was a revocation of such authority, or at least a suspension of it until a new attorney was was appointed.

But for the first stated reason, the motion must be denied, with costs.