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In the more recent case of Hannigan v. Allen, 127 N. Y. 639, 27 N. E. Rep. 402, these views are emphatically reiterated, and Arnold v. Nichols is approved. "As we have seen,” says the court, "each partner contributed to the capital of the firm the stock of goods he had on hand, on which there were amounts owing for purchase money. The goods having been transferred to the old firm, and the firm having assumed and agreed to pay the balance of the purchase price unpaid, the agreement will be deemed to have been made for the benefit of the creditors holding such claims, and an action may be maintained by such a creditor against the firm upon such agreement."
It will be found upon examination that all the cases in which the doctrine laid down in Lawrence v. Fox, 20 N. Y. 268, has been invoked, but held inapplicable, are reducible into two classes; namely, those in which there was no privity between the promisee and the person seeking to enforce the contract, nor duty owing by the former to the latter, (Vrooman v. Turner, 69 N. Y. 280; Lorillard v. Clyde, 122 N. Y. 498, 25 N. E. Rep. 917;) and those in which the privity or duty was apparent, but the contract utterly failed to indicate any intention to benefit particular persons not parties thereto, (Wheat v. Rice, 97 N. Y. 296; Serviss v. McDonnell, 107 N. Y. 260, 14 N. E. Rep. 314.) In the case now before us, the fact of Swyke's indebtedness to plaintiffs for the merchandise contributed by him to the stock of Swyke & Rosenfeld furnishes ample evidence of a duty owing from the promisee to the persons seeking to avail themselves of Swyke & Rosenfeld's promise, and it remains for us, therefore, to distinguish the case from the class secondly mentioned. This distinction is clearly pointed out in Beveridge v. Railroad Co., 112 N. Y. 1, 26, 19 N. E. Rep. 489, 496, where the court says:
"Within the principles of adjudged cases in this court where the plaintiff seeks to base his right to maintain his action against a third party upon a contract made between that party and another, it must be one made or intended for his benefit. Such a beneficial intent must clearly be found in the agreement."
Wheat v. Rice, and Serviss v. McDonnell, supra, both of which are cited by appellant's counsel, are therefore not applicable to the case at bar. In Wheat v. Rice the promise was to pay one-quarter of the promisee's aggregate indebtedness, but the particular debts which the quarter was intended to comprise were not mentioned. In Serviss v. McDonnell it was “to pay one-third of the liabilities of the late firm," without specifying the several or particular liabilities to which the promise should attach. In both cases it was held that there was no intent apparent from the promise that plaintiff's claim was among the debts of which the promisor had assumed payment, no particular debt or class of debts being mentioned therein, and the promise being open to the equal assertion of benefit by all creditors of the promisee, and hence that the action was not maintainable. See, also, Vrooman v. Turner, 69 N. Y. 280, 284. The case before us, however, presents an essentially different
promise from those in Wheat v. Rice and Serviss v. McDonnell. Here the promise was to pay the aggregate indebtedness of Swyke, amounting to $600, and due from him for the purchase price of the merchandise which he had contributed to the stock of Swyke & Rosenfeld. It seems necessary, therefore, only to inquire whether the bale of tobacco which plaintiffs had sold to Swyke was part of the merchandise which the latter so contributed,—to ascertain whether or not plaintiffs' claim for the purchase price due therefor was among the debts owing by Swyke which Swyke & Rosenfeld contemplated to pay at the time of the execution of the copartnership articles. In Barlow v. Myers, 64 N. Y. 41, the court assumed that a promise to pay all the creditors of the promisee would leave no room to doubt that every creditor who was such at the time the promise was made was intended to be secured and benefited there by, and so could maintain an action thereon to recover the particular demand owing to him. In Carman v. Kelly, 5 Hun, 283, and again in Melvain v. Tomes, 14 Hun, 31, the supreme court so ruled. Seemingly, a promise to pay all the claims due upon the sale of particular merchandise, and a promise to pay all the claims of the existing creditors of a particular person, are equally definitive. Each promise alike designates a particular class of debts which are to be paid, and in each instance the particular creditor to whom such payment is intended to be made may be ascertained by reference to the fact that his demand is included in the class mentioned.
On the trial, defendant was permitted to testify to an alleged oral understanding between himself and his deceased copartner to the effect that Swyke & Rosenfeld's assumption of Swyke's debts should be limited to the particular claim of one Davidson. This was plainly violative of the familiar rule that the effect of a written instrument may not be varied by parol evidence. True, the rule does not apply between the parties to the instrument and a stranger, but that is so only when the latter asserts a right independent of, and not growing out of, the instrument, or when the right asserted does not originate in the relations established by the instrument; otherwise, the rule prevails. Browne, Par. Ev. p. 40, § 28, subd. 15. Defendant's uncorroborated statements, as a witness in his own behalf, in other respects, were subject to discredit as those of a party in interest; and as the justice, upon abundant evidence, determined that defendant's positive denial that Swyke & Rosenfeld had received the bale of tobacco which plaintiffs had sold to Swyke was untrue, we are unable to say that the justice erred in disregarding defendant's uncorroborated testimony altogether. No error in rulings on the trial is claimed. The judgment should be affirmed, with costs.
(5 Misc. Rep. 75.)
AVERY V. AVERY et al. (Supreme Court, Special Term, Onondaga County. September 2, 1893.) ATTORNEY'S LIEN-PROCEEDINGS TO ENFORCE — W10 MAY MAINTAIN.
A party to an action cannot biaintain proceedings on behalf of bis at· torney to enforce the attorney's statutory lien for his costs, but such pro ceedings must be prosecuted by the attorney personally. Action by William R. Avery against Charles A. Avery, Clinton E. Avery, Clayton D. Avery, and others, to foreclose a mortgage, in which defendant Charles A. Avery filed an answer setting up a stipulation by plaintiff to discontinue the action. Plaintiff moved to discontinue as to Clinton E. Avery and Clayton D. Avery, and for an order allowing the action to be continued by his attorney against the other defendants for the recovery of such attorney's costs under his statutory lien, on the ground that the stipulation to discontinue was procured by defendant Charles A. Avery by fraud. Motion to discontinue granted. Motion to continue denied.
Irving G. Hubbs, for the motion.
WRIGHT, J. This action was brought for the foreclosure of a mortgage, on which the complaint alleges $65 was due as interest, which the verified answer den'ies. From the plaintiff's papers it appears that before the answer was served the defendant Charles Avery, in an interview with the plaintiff, stated to him that he had paid the costs of the action to the plaintiff's attorney, Mr. Irving G. Hubbs, and that said attorney had written a letter to him, the pla'intiff, stating that fact, and requesting the plaintiff to sign a stipulation discontinuing and settling the action; and he also exhibited to the plaintiff a letter to that effect, purporting to be signed by said attorney. That the plaintiff thereupon, believing said statements to be true, and the letter to be genuine, signed the stipulation; that said statements were false, and the letter a forgery. After the stipulation was executed and delivered to the defendant Charles Avery, he, instead of moving for an order to discontinue the action, served his answer, setting up, among other things, said stipulation as a defense.
The plaintiff now asks the intervention of the court to relieve his attorney from the effect of the stipulation which the plaintiff himself has made, on the ground that the stipulation cuts off his attorney's statutory lien for costs. Omission to consider the logic of the statute in many cases has caused considerable chaos in the decisions respecting the attorney's lien. The statute gives the attorney a lien on the cause of action as against both his client and the adverse party. The object of the lien is to secure to the at. torney the payment by his client of the costs which may be recovered against his adversary, and any other agreed compensation for his services, out of the proceeds of the action. The claim
against his client is the principal debt. The lien is only a collateral security. Courts will enforce this lien, as against the opposite party, upon the motion of the lienor, where equity requires it, by setting aside a settlement made between the parties without the attorney's consent, and allowing the action to be prosecuted by the attorney in his own behalf. Some cases have held that a settlement by the parties will not be set aside unless it was collusively made by them for the purpose of cheating the attorney out of his compensation, but such fraudulent purpose is not essential if the settlement have the effect of cheating the attorney. If it prejudices his claim against his client, or inequitably affects his interests in any manner, it will be set aside, no matter in how good faith it may have been made. But in this case the lienor does not ask the enforcement of his lien. It does not appear that he personally desires to take upon himself the burden of the prosecution for his own benefit and at his own risk, but the plaintiff makes the motion on behalf of his attorney. The rights and interests of the client are in the keeping of his attorney, and it is a sacred trust; but to hold conversely that the rights and interests of the attorney are in the keeping of the client would be a unique proposition indeed. The attorney personally is the necessary actor in the proceeding to enforce his own lien. The client cannot institute the proceeding on behalf of his attorney, so that it may stand with its merits separate and apart from every other contingency in the action. Murray v. Jibson, 22 Hun, 386; Wehle v. Conner, 83 N. Y. 231; Oliwill v. Verdenhalven, (City Ct. W. Y.) 7 N. Y. Supp. 99. Further, had the attorney made this motion personally, it would fail, because it does not appear that the interests of the attorney have been inequitably affected by the settlement, and it appears that his client possesses large financial means, and that his claim for compensation for his services against the principal debtor is perfectly good. There is therefore no reason for the attorney to invoke the courts for the protection of his lien. Pitcher v. Robertson, (Sup.) 21 N. Y. Supp. 66; Roberts v. Doty, 31 Hun, 128; Root v. Van Duzen, 32 Hun, 63; Washburn v. Mott, (Cir. Ct.) 12 N. Y. Supp. 111; Hart v. Mayor, etc., 69 Hun, 237, 23 N. Y. Supp. 555. Further, the questions involved in this motion can best be determined on the trial of the action in the form in which it is now pending.
The defendants, in their papers, deny the allegation of fraud in connection with the settlement, and have set up the stipulation as a defense in their answers, and have thus invited the trial of its validity as one of the issues before a jury. The order asked for would change the issues thus proffered and the course of the trial; would, in effect, drop out the plaintiff, and substitute the attorney in his stead, and eliminate the question of fraud from the issues at the request of the party who is here complaining of fraud. This ought not to be permitted, since the plaintiff, upon returning the $65, will, under the pleadings, have the right to submit to the jury the question of fraud in the settlement, and thus a more
full and complete investigation may be had of the facts than can be had from the papers presented on this motion. The action may be discontinued as against the defendants Clinton E. Avery and Clayton D. Avery upon the payment of $10 costs before notice of trial, but the remainder of the motion is denied.
(4 Misc. Rep. 517.) PEOPLE ex rel. WATKINS V. COJOMISSIONERS OF EXCISE OF TOWN
(Supreme Court, Special Term, Erie County. August, 1893.) INTOXICATING LIQUORS-REFUSING LICENSE-GROUNDS.
The fact that the excise commissioners of a town were nominated and elected as "no-license" commissioners is sufficient ground for their refusal to grant a license to sell intoxicating liquors, since this is the established and customary way for a town to enforce local prohibition, and its right to enforce it is recognized by Laws 1892, 6. 401, § 41, excluding towns "where the majority of voters have voted for or hereafter vote for local prohibition” from the operation of that chapter.
Certiorari on the relation of Charles T. Watkins to review the action of John B. Smallwood, Stephen C. Vincent, and James 0. McClure as commissioners of excise of the town of Warsaw, in the county of Wyoming, in refusing to grant to the relator an hotel license for the sale of liquor. Dismissed.
I. Sam Johnson, for relator.
WARD, J. The relator keeps an hotel in the town and village of Warsaw, known as the "Watkins House.” This village has about 4,000 inhabitants. Watkins is a man of good character, and competent to keep a first-class hotel. The hotel building is a fine one, and every way suitable to carry on the business for hotel keeping, and properly furnished for that purpose. Commissioner Smallwood was duly nominated and elected as a no-license commissioner of excise for the town of Warsaw, at a regular town meeting held in February, 1891. Stephen C. Vincent was in the same manner nominated and elected as a no-license commissioner at the town meeting held in February, 1892. Commissioner McClure was duly nominated and elected as commissioner favoring license at the town meeting held in February, 1893. These commissioners duly qualified and acted as such, and on the 7th day of July, 1893, while they were in session as a board of excise in the town of Warsaw, the rela cor presented to them a written application for an hotel license, accompanied by a bond and affidavits, which bond and application were sufficient and as required by law. The commissioners made a return to the writ, which, among other things set forth:
“That, after fully considering said application, it was determined by a mi jority of said commissioners, comprising such board, that no license should be granted thereon, and the statement was then and there recorded of thw