Carpenter v. Allen — 45 N.Y. Super. Ct. 322

Majority

p. 322

DANIEL CARPENTER, Plaintiff and Respondent, v. HARRY A. ALLEN, Defendant and Appellant.

Headnote

Attorney.—Authority of, to commence an action, <&c.

On a motion of defendant, that the summons and complaint, in an action, be dismissed, on the ground that the attorneys for the plaintiff had not sufficient, or any authority, to institute the action in behalf of plaintiff, it appeared from the motion papers, that defendant had previously obtained an order in the same action, that plaintiff’s attorneys.show cause why they should not be compelled to produce their authority from the plaintiff for commencing this action; that on the return of said order to show cause, the affidavit of the plaintiff was filed and read, in which plaintiff stated in substance that he had instructed the attorneys who appeared in his behalf to bring the action in his name against the defendant, and said authority was deemed sufficient by the court and so declared by its order.

The court held, on this motion, that in the former proceedings this court had declared that sufficient authority for the commencement of this action, by the plaintiff’s attorneys, appeared in the affidavit of the plaintiff; that such adjudication was final until reversed on appeal;. and that it cannot be reviewed on this motion, subsequently made in this action.

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Before Sedgwick and Freedman, JJ.

Decided June 13, 1879.

Appeal from an order denying defendant’s motion to dismiss complaint, upon the ground that the attorneys of record for the plaintiff had not at the time of the commencement of this action any sufficient authority, or any authority, to institute the said action, in behalf of said plaintiff.

Harvey A. Allen, defendant and appellant, in person, urged:

I. The attorney shall have a written request from the plaintiff, or his agent, to commence the action, or a written recognition of the authority of the attorney to commence the same (2 R. S. 306). Said attorneys did not possess such request, nor do they produce any such recognition.

II. No general retainer to attend to the business of the plaintiff is sufficient; it must be specific (Howard v. Howard, 11 How. Pr. 80 ). Hence, it must be given for a special purpose at a proper time therefor, for the purpose of bringing the action, and before the commencement of the action.

III. Plaintiff in his affidavit states “and I have instructed them (my attorneys) to bring an action to eject.” When ? On that day, and by that instrument; that is to say, January 11, 1879. Plaintiff does not say, this action was brought by my direction ; had he said in such affidavit—I instructed them to bring this action, the authority would be full, but “to bring an action,” can only be construed to apply to the future, and cannot be considered as giving them authority to have brought this action at the time they did. If the authority produced does not assume whatever has been done in the premises, it should antedate the action. Full assumption of the acts heretofore had has been held sufficient in the single case cited, and the only

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one reported (see Howard v. Howard, supra). But in the affidavit herein produced there is no such plenary assumption. Plaintiff simply directs for the future; that is to say, from and after January 11, 1879, and his affidavit does not relate back in any way, and cannot be so construed. Where the requisite is a statutory one, nothing can be presumed in favor of the authority produced ; it must appear on its face that the attorneys were authorized to institute the action at the time it was commenced. Hence, the service of the summons and complaint by the said attorneys, assuming to be for the plaintiff, was not for him, was entirely without adequate or any authority whatever, and was a naked assumption by them of unauthorized power.

Man & Parsons, attorneys, and William Man, of counsel, for respondents, urged:

I. It was not necessary that the attorneys should have any written authority to commence the action. The provision of the statute is alternative ; it is sufficient if the attorneys produce, 1. Any written request of the plaintiff to commence the action ; or, 2. Any written recognition of the authority of the attorneys, duly proven, &c. (3 R. S. 6 ed. 573, § 15). The affidavit of plaintiff that he had instructed Man & Parsons, his attorneys, to bring this suit to eject the defendant, and that he had directed the action to be brought in his own name, was ample evidence of the authority of the attorneys, by way of “ recognitioh” of their authority (Howard v. Howard, 11 How. Pr. 82 ).

II. The authority in question had already been adjudged sufficient by the order of January 18, 1879, which states the authority produced and in question, to be “ the authority asked for by defendant, given by plaintiffs to his said attorneys.” Ho appeal was taken from this order.

The action was in

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ejectment. The motion was made upon the ground, as stated in the notice, that the attorneys for plaintiff “had not, at the time of the commencement of the action, any sufficient authority, or any authority, to institute this action on behalf of said plaintiffs.”

Before such motion was made, the defendant had obtained an order that the attorneys for plaintiff show cause why “they shall not be compelled to produce their authority from the plaintiff for commencing this action,” staying proceedings in the meantime.

On the return day of this order, an affidavit of the plaintiff was produced, made after the action was begun, which stated : “ I have instructed Man & Parsons, of 56 Wall street, New York city, my attorneys, to bring an action to eject, from the said premises, Harvey A. Allen,” “and I have directed that such suit should be brought in my name, as plaintiff.” An order was thereupon made, reciting the order to show cause, and continuing, “ now, on producing and filing the said authority asked for by the defendant, given by said plaintiff to his said attorneys, the order is hereby confirmed.”

This order was not appealed from, but subsequently the present motion was made, on the ground that the authority produced was not sufficient, under 2 R. S. 2 ed. p. 314, § 20, which is “ any written request of such plaintiff or his agent, to commence such action, or any written recognition of the authority of the attorney to commence the same, duly proved by the affidavit of such attorney or other competent witness, shall be sufficient presumptive evidence of such authority.” But it is manifest that the court, in proceeding upon the order to show cause, had once declared that there was sufficient authority in the affidavit of the plaintiff that had been produced. This adjudication was final until reversed, and could not be reviewed upon the motion for the order now appealed from.

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If the court had been called upon to look at the character of the authority, it must have been held sufficient. It was a reasonable inference, that when the plaintiff swore that “I have instructed,” and “I have directed that such suit shall be brought,” he referred to this suit, as already to his knowledge brought.

Order appealed from affirmed, with $10 costs, and disbursements to be taxed.

Freedman, J., concurred.

Cases cited

Howard v. Howard 11 How. Pr. 80 N.Y. Sup. Ct. p. 323