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Metropolitan Concert Garden Co. v. Abbey

49 N.Y. Super. Ct. 294 17 Jones & S. 294 Court N.Y. Super. Ct. Decision date 1883-06-02 English

Delivered by *295 By the Court.—Ingraham, J.

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p. 294
THE METROPOLITAN CONCERT GARDEN CO., Appellant, v . HENRY E. ABBEY, et al., Respondents.

Headnote

Stipulations—power of court in regard to.—Attorney and client.
The court at special term has general power to relieve in a proper case a client from stipulations entered into by his attorney, e. g., a stipulation that the verdict of a jury, or order on direction of the court, in a certain other action between the same parties, shall be deemed to have been made in the action in which the stipulation is entered into—or, that in case a default in a certain other action between the same parties is not opened, judgment shall be entered in the action in which the stipulation is made against the party stipulating.
Whether an attorney can bind the client by such stipulations without his express assent or authority, guare.
Before Sedgwick, Ch. J., and Truax and Ingraham, JJ.
Decided June 2, 1883.
Appeal from order of the special term relieving the defendants from stipulations entered into by their former attorneys.
The stipulation in action No. 3 was to the effect that the verdict of the jury, or direction or order of the court, in certain other actions between the same parties should be taken and considered as having been rendered and made in this action. The exact terms of the stipulation in action No. 4 were not stated, but it appeared to have been to the effect that if the default in actions Nos. 1 and 2 should not be opened, the plaintiffs should enter judgment for the amount demanded in the complaint in said action No. 4.
Davenport & Leeds, for appellant.
Geo. L. Rives and A. J. Dittenhoefer, for respondents.

—It is well settled that the court at special term had power to relieve the defendants from the stipulation entered into by their attorneys (Barry v. Mutual Life Ins. Co., 53 N. Y. 536 ). At the time the stipulations in action No. 3 was signed defendant’s attorney was in Europe, and both defendants swear that the stipulation had been entered into without their authority, and that, they had no knowledge that either of them had been made until about the trial of the applications to the special term for relief.

I think that under the decision cited by the court, in .granting the order appealed from, there is considerable doubt whether an attorney has authority to make such stipulations as were made in these cases without the--express assent of his client. It was undoubtedly within the power of the court to grant or refuse a favor on condition of making such stipulation; and an acceptance of such a favor would bind the party so accepting it with the terms or conditions on which it was granted; but it does not appear that the stipulations in question were executed under such a direction, but were simply made in pursuance of an agreement between the attorneys for their respective parties.

Without passing on that question, and without passing on the validity of the defenses set up in the amended answer, I think that this was a proper case for the court to relieve the defendants from the stipulations. The original actions were never tried, but judgments were taken by default; the defendants have had no opportunity to try the questions in the regular way, at the regular trial terms; and I think, under the circumstances of these causes, they should have such opportunity. If plaintiffs are entitled to recover, it does not appear that they will be prejudiced by the order appealed from. That provides for security for the payment of any judgment that they may obtain, and the payment to them of the costs of the actions.

I am of the opinion that under all the circumstances of

p. 296
these cases the order appealed from should be affirmed without costs.

Sedgwick, Ch. J., and Truax, J., concurred.

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