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Evans v. Harris

47 N.Y. Super. Ct. 366 15 Jones & S. 366 Court N.Y. Super. Ct. Decision date 1881-06-06 English

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p. 366
M. L. EVANS, Respondent, v. SAMUEL L. HARRIS, Appellant.

Headnote

Attorney—when not precluded under General Buie 5, from executing undertaking.
An attorney, who has not practiced as such for some time, e. g., for one year, and is engaged in another vocation, under General Rule 5, is not precluded, by the fact that he is an attorney, from executing an undertaking in an action.
Before Sedgwick, Ch. J., and Freedman, J.
Decided June 6, 1881.
Appeal from order denying defendant’s motion to vacate attachment, on the ground that one of plaintiff’s sureties was an attorney.
L. B. Bunnell, for appellant.
Edgerton & Havens, for respondent, urged :
I. At most the execution of the undertaking by
p. 367
Hartwell was a mere irregularity, and would not affect the jurisdiction of the court or warrant the court in vacating the attachment (Wilmont v. Meserole, 48 How. Pr. 430 ; S. C., 16 Abb. Pr. N. S. 309 ; Kissam v. Marshall, 10 Abb. Pr. 424 ). The courts make the rules,, and they can suspend or modify them as circumstances may require (Martine v. Lowenstien, 68 N. Y. 456 .)
II. Hartwell, under the circumstances, would have been qualified as bail; semble, that he could also join, in an undertaking (Wheeler v. Wilcox, 7 Abb. Pr. 73 ).
III. If any defect existed it was a mere irregularity,, and the proper subject of an amendment (Code Civ. Pro. §§ 723, 724, 729, 730 ; Irwin v. Judd, 20 Hun, 562 ; Holmes v. McDowell, 15 Hun, 585 ; affi’d 76 N. Y. 596 Kissam v. Marshall, 10 Abb. Pr. 424 ; In re Heler, 41 How. Pr. 213 ; 2 Wait Pr. 151).

Rule 5 of the General Rules provides that in no case “ shall an attorney or counselor be surety on any undertaking or bond required by law.” So far as bail was concerned, this was declaratory of a long existing rule. The existing rule was not, however, applied to the case of attorneys who had retired from practice for a long time (The King v. Inney, 2 East, 182; Bill v. Gate, 1 Taunt. 162). The reason of the prohibition did not apply to such a case. It was not intended to apply a rule of a larger scope to undertakings. In this case it appeared that the surety, although at one time an attorney, had altogether left practice for some time, and was engaged in another vocation. The time was more than a year. There is no occasion to disturb the judgment of the court below, that the time, under the circumstances, was sufficient to bring the case within the limitation of the rule above referred to.

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

Freedman, J., concurred.

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