Hyperlawhypertext legal database Neill v. Van Wagenen 54 N.Y. Super. Ct. 477

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Neill v. Van Wagenen

54 N.Y. Super. Ct. 477 22 Jones & S. 477 Court VIII. This court has recently held that the relief Decision date 1887-05-18 English

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CHARLES H. NEILL, et al., v. JACOB VAN WAGENEN. CHARLES H. NEILL v. JACOB VAN WAGENEN.

Headnote

Attorneys prior to 1879—Discontinuance by party irregular as to attorney —Ratification of.
Prior to the amendment in 1879, of § 66 of the Code of Civil Procedure, the lien of a plaintiff’s attorney before judgment extended only to the papers in Ms hands; but the court, on granting a discontinuance, could, on proof that the action had been collusively settled between the parties, with the design of defrauding the attorney, have imposed the condition of the £>ayment to Mm of a reasonable compensation.
An order of discontinuance without the consent of, or notice to, the plaintiff’s attorney, is irregular as to him, and may be set aside on Ms motion.
Such order, however, may be ratified by the attorney; and 1ns acquiescence therein for eight years and bringing an action based on such order of discontinuance will constitute a ratification.
Whittaker v. N. Y. & Harlem It. E. Co., 54 Super. Gt. 8, has no application to cases arising prior to the amendment, in 1879, of § 66 of the Code of Civil Procedure.
Before Freedman and O’Gorman, JJ.
Decided May 18, 1887.
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Appeal by plaintiffs’ attorney from order denying his motion to set aside orders of discontinuance.
The facts sufficiently appear in the opinion.
Samuel H. Randall, attorney, and Hon. Hooper C. Van Vorst, of counsel for appellant, argued:
I. The orders of discontinuance were illegal, as well as irregular, and the illegality was such they could not be validated by mere lapse of time against the attorney injured thereby. Code Civ.Proc., § 55; Keenan v. Campbell, 1 Law Bul. 18 ; Pilzer v. Gore, 12 Abb. 244 ; Chadwick v. Snedeker, 26 How. 260 ; Webb v. Dill, 18 Abb. 264 ; Halsey v. Carter, 6 Rob. 535 ; Miller v. Thall, 67 Barb. 446 .
II. The appellant, as assignee of the causes of action, as collateral to secure his agreed compensation and the indebtedness of the Neills to him of $2,100, for money loaned and other services, had the sole right to prosecute the actions and any interference therewith by the Neills and Van Wagenen, after the assignment, with notice to Van Wagenen, was necessarily and absolutély illegal, wrongful and fraudulent. Peck v. Yorks, 75 N. Y. 421 ; Coughlin v. R. R. Co., 71 Ib. 449; Wheeler v. Wheeler, 9 Cow. 34 ; Rooney v. R. R. Co., 18 N. Y. 368 ; Dietz v. McCullum, 44 How. Pr. 493 ; Crotty v. McKenzie, 42 Super. Ct. 199.
III. The suppression of the attorneys of Van Wagenen from the court, of the knowledge, that the consents were not signed by plaintiffs’ attorney, was a fraud, on the court, amounting to something more than mere <•- irregularity.” There is no limitation of time upon the power of the court in such cases. Verplanck v. Van Bruen, 76 N. Y. 247 ; Hurlburt v. Coman, Daily Reg. March 28, 1887 ; Bowe v. Mangold, 50 How. 240 ; Dinsmore v. Adams, 48 Ib. 274; Bradford v. Drayton, 17 Abb. 36 ; Neeks v. Merrit, 5 Rob. 610 ; Hackley v. Draper, 60 N. Y. 92 ; Miller v. Carty, 6 Rob. 470 ;
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White v. Coulter, 59 N. Y. 629 ; Rutter v. Tullis, 5 Sandf. 612 ; Orphan Asylum v. McCartee, Hopk. 372; Wade v. De Leyer, 40 Super. Ct. 541. Neither sections 1282, 1283 nor 1290 apply in such cases.
IY. “ Such an act as entering an order of discontinuance on the consent of the client, where he has an attorney, is something more than irregularity, it is a nullity.” Jackson v. Smith, 16 Abb. 201 ; Miller v. Thall, 67 Barb. 446 ; Kellogg v. Hill, 62 Ib. 280; Winnebrunner v. Edgerton, 8 Abb. 419 ; Nugent v. Mulvy, 90 How. 460 ; Bowe v. Mangold, 50 Ib. 248; 2 S. & T. Prac. pp. 1028 and 1029, and cases cited.
Y. While actions for equitable relief are ordinarily barred after the lapse of ten years; on motion, no limit of time restrains the court, after the action is commenced, from granting relief therein. Code Civ. Proc., § 388; Van Allen v. Schermerhorn, 14 How. Pr. 287 ; Rutter v. Tullis, 5 Sandf. 612 ; Delaney v. Bloodgood, 7 Hun, 7 ; Evans v. Cleveland, 72 N. Y. 486 ; State of Indiana v. Woram, 15 Abb. 264 ; Cary v. Stebbins, 1 Barb. Ch. 589 ; Marvin v. Marvin, 1 Abb. N. C. 372 ; Wade v. De Leyer, 40 Super. Ct. 541.
YI. Courts will always treat as sufficient a reasonable or satisfactory excuse for delay, which might otherwise be deemed laches, and will always exercise a tender and benevolent jurisdiction in seeking to protect their officers from loss of the fruits of their industry or skill, by fraud and collusion of adverse parties. Wade v. De Leyer, 40 Super. Ct. 541; Dietz v. McCullum, 44 How. Pr. 493 .
VII. The delay of the appellant to seek judicial relief, by motion, was not an answer to his application on the state of facts shown on the motion below. Matter of Lord, 78 N. Y. 114 ; Hackley v. Draper, 60 Ib. 92; McLean v. Tompkins, 18 Abb. 24 ; Hill v. Hemans, 59 N. Y. 396 ; Truman v. Leland, 6 Hill, 237 ; Booth v. Bank, 50 N. Y. 396 .
VIII. This court has recently held that the relief
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asked for by appellant (for the court to vacate the orders of discontinuance and allow appellant to prosecute the actions) is the appropriate relief to be granted in such cases, and whereby the rights of all parties would be protected, without any shadow or degree of injustice. This relief being granted, the attorney would not be driven to a new action, as assignee of the claims against respondent, which would be clearly barred at this time by the statute of limitations. Whittaker v. R. R. Co., 54 Super. Ct. 8.
IX. “ Laches ” does not confer jurisdiction, nor validate that which is illegal, fraudulent, or a nullity. Buckley v. Buckley, 6 Abb. 312 ; Williams v. Van Valkenburg, 16 How. 150 ; Titus v. Relyea, 8 Abb. 179 ; Heard's 9th. ed. Steph. Pleading, Note Z., citing Broom's Maxims, 4th Lond. ed. 139; Dudley v. Mayhew, 3 Coms. 9.
X. “ The order of the court should not shield a party who acts with knowledge of a fraud, by an officer of the court, and no wrong is done by restoring the parties to the same condition they occupied prior to the alleged sale and transfer of the judgment.” Hackley v. Draper, 60 N. Y. 92 ; see 78 N. Y. 114 supra.
Charles M. Marsh, attorney, and of counsel for respondents, argued:
I. The order of discontinuance was a judgment under the definition of the Code ; it was a final determination of the rights of the parties in that action. Code, § 1200 ; Crockett v. Smith, 14 Abb. 62 .
II. While the order of discontinuance was improperly granted it was an irregularity only, and this motion expressly states that it is to set aside the discontinuance as irregularly entered.
III. The judgment or order of discontinuance is shown by the moving papers to have been entered and brought to the notice of the moving party on October 10, 1877, more than eight years ago.
IV. The Code provides: A motion to set aside a final
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judgment for irregularity shall not he heard after the expiration of one year since the filing of the judgment roll, etc. § 1282.
Y. The motion should not be granted upon the merits. 1. There has been gross laches, in delaying for nine years to make this motion. In ordinary cases the law lias fixed six years within which an action upon contract can be brought. If the allegations in the moving affidavit, that not only was there an agreement for compensation, but the whole cause of action was assigned, is true, Randall could upon the discontinuing have at once brought a new action in his own name. He has neglected this for nearly nine years, and is now asking the court to aid him in evading the statute. 2. Conceding, for the argument, that Neill’s consent to discontinue was unauthorized, yet by commencing his action Randall ratified or acknowledged the validity of the act. The foundation of that action was supposed to be a valid act by Neill in ending the suit. It is true that Randall, ignorant of his legal rights, supposed that he could by that election hold Yan Wagenen for damages he claimed to have sustained, but does not alter the fact that he elected to consider the discontinuance valid and binding.

The appeal is from two orders made at special term denying the motion of the attorney of the plaintiffs in these actions to set aside the orders of discontinuance entered on consent of the plaintiffs. The orders of discontinuance were entered October 8, 1877. The amendment of section 66 of the Code of Civil Procedure, which gives to an attorney, from the commencement of the action, or the service of an answer;, containing a counterclaim, a lien upon his client’s cause of action or counterclaim, was not passed until 1879. For this reason Whittaker v. N. Y. & Harlem R. R. Co. (54 Super. Ct. 8) does not help the appellant. As the law stood in 1877, the lien of the

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appellant as attorney for his compensation extended only to the papers in his hands, and upon proof of a settlement privately effected between the parties with the design of defrauding the attorney, the court could have insisted upon the payment to him of a reasonable compensation before granting a discontinuance. The actions were settled and discontinued by and between the parties and the orders of discontinuance entered, without notice to the appellant. This was clearly irregular so far as he wa's concerned, and upon his motion the orders of discontinuance might have been set aside. But the orders were not a nullity. They were good as between the parties, and the appellant could ratify them by acquiescence. Copies of the orders of discontinuance were served on the appellant on October 10, 1877, and for about eight years he did acquiesce. Moreover he elected to pursue another remedy. He brought an action in this court against Van Wagenen and the two Neills,[1] in which he alleged that by a parol assignment the Neills had assigned to him all their right, title and interest in and to the causes of action upon which the above entitled actions had been brought; that notice of this assignment had been given to Van Wagenen ; and that Van Wagenen and the Neills had conspired together to defraud him and fraudulently had settled the said actions and procured them to be discontinued. He also averred that in consequence of said conspiracy and fraud he had sustained damages to the amount of ten thousand dollars, and he prayed judgment for that amount. The orders of discontinuance were thus made' the basis of the action brought by the appellant, and consequently the bringing of the action was in affirmance of the orders.

Upon this state of facts the motion made by the appellant after the lapse of eight years to have the orders of discontinuance set aside, was properly denied. More

* See following case in this volume.

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over he was not injured by the said orders so far as his interest related to the indebtedness due to him by the Neills or to the causes of action which had been assigned to him. He could have enforced his rights in these respects in proper actions notwithstanding the discontinuance.

The order appealed from should be affirmed, with $10 costs and disbursements.

O’Gorman, J., concurred.

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