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App. Div.]

SECOND DEPARTMENT, JULY TERM, 1903.

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appellant and that the plaintiff's conduct has been such as to bind her by the result of the trial, after that result had been duly acquiesced in by the appellant in good faith.

There is no dispute but that Mr. Fiske was duly authorized to begin the action. Such authority was conferred by writing, dated July 27, 1901, duly acknowledged, signed by the plaintiff and the next of kin of her decedent, expressly retaining and employing the attorney to ask, demand and sue for all moneys belonging to the estate, due to them or any of them. This authority was conferred in contemplation of this suit, the plaintiff having previously endeavored to make a demand of Quinn for the possession of the bank book as a preliminary to the commencement of the action, under the attorney's advice. He was, however, discharged by her on the night of August 21, 1901, which discharge was valid as between them, notwithstanding the fact that his services had not been paid for; but the plaintiff with full knowledge that this action had then been commenced by him voluntarily elected to permit it to proceed to trial and to judgment without notifying the defendants, or either of them, that she had discharged her attorney or that he was prosecuting the suit against her will. By advice of new counsel she decided to take the chances of the issue of the suit before publicly repudiating the authority of the attorney by whom it was conducted, and it would be inequitable to compel the appellant to incur the risk of a second payment after having once discharged its liability under a judgment thus procured with every appearance of regularity.

The action was commenced on the afternoon of August twentyfirst. Very likely it was commenced by the attorney hurriedly in anticipation of his discharge, but the question under consideration has no relation to his rights, but relates solely to the rights of the innocent appellant. The attorney claims that he told the plaintiff on the night of his discharge that the action had been commenced. This she denies and asserts positively that she never knew that the action had been commenced until she received a letter from Fiske dated November 25, 1901, to which further reference will be made. In this she is clearly mistaken, for as early as August 30, 1901, she received a letter from him in which he distinctly told her that the action had been commenced, as he had told her “last Wednesday, a

SECOND DEPARTMENT, JULY TERM, 1903.

[Vol. 86. week ago," viz., August twenty-first. She replied to this letter under date of August thirty-first, expressing surprise at its contents, denying that the action had been commenced on August twentyfirst, but not denying the statement that he had told her so when he was discharged. This letter was drafted by her new attorney, Mr. R. A. Morrison.

A number of letters were written by Mr. Fiske to the plaintiff about the suit prior to the trial. He wrote her on November twenty-fifth as follows: “Your suit with Mr. Quinn has been noticed for trial by both parties, and in all probability will be placed on the preferred calendar for the December Equity Term, which meets on the first Monday of December next. I should like to consult with you in regard to the same. Quinn is quite confident that he will succeed, but I do not think he will. He certainly will not if we can get our witnesses. I hope you will come and see me so that we may be ready to meet them at the trial. This action was commenced on the 21st day of August.” On the twenty-ninth day of November he wrote to her again in reference to the case urging her, among other things, not to let the matter go by default, but no notice was taken of these or any of the other letters, nor was any answered excepting that of November twenty-ninth, which was answered by Mr. Morrison in the plaintiff's name six days after the trial. The case was placed on the day calendar on the second day of the December term and remained there until it was tried. Mr. Morrison, as well as the plaintiff, knew that it was on the day calendar and about to be tried, but for some unexplained reason allowed no hint to escape to the appellant or to its counsel of the severed relations of the plaintiff and her attorney. It may be added that Mr. Morrison was possibly influenced in the course of couduct adopted by the belief that the action was wholly unauthorized, inasmuch as the plaintiff denied to him when questioned upon the subject, that she had executed the written authority dated July 27, 1901. Be this as it may, it is undisputed that the only communication addressed to the appellant was one dated August 26, 1901, signed by Morrison in which as attorney for the plaintiff as adıninistratrix he notified the president of the bank not to pay the money on deposit to any one other than her. But the fact that the plaintiff questioned or disputed Mr. Fiske's authority to conduct the

App. Div.]

SECOND DEPARTMENT, JULY TERM, 1903.

a

action on her behalf was not disclosed, but on the contrary the utmost care in concealment of that fact appears to have been studiously and successfully taken during the four months intervening his discharge and the trial.

There is no suggestion in the record that the case was not fully and fairly tried or properly decided. There is no claim that any different result will be reached on a new trial, that Quinn has not a good title to the money in question or that there is any witness who can testify to anything on the merits in the plaintiff's behalf.

The rule of law applicable to the situation is summarized from the authorities in the Encyclopædia of Pleading and Practice (Vol. 2, p. 685) as follows: "Taking some early English cases as their guide they held that an appearance by attorney, whether for the plaintiff or the defendant if there be no collusion, may be recognized by the adverse party as authentic and valid ; that when an attorney takes upon himself to appear the court, in case of a domestic judgment, looks no further, but proceeds as if the attorney had sufficient authority and leaves the party to his action against such attorney if he is financially responsible.”

In Denton v. Noyes (6 Johns. 296) it was held that a judgment confessed by an attorney without authority was regular and valid, and that the appearance, although without warrant, was good as to the court. In Hamilton v.

In Hamilton v. Wright (37 N. Y. 502) it was further held that the law warrants a party in giving faith and confidence to an attorney who, by law, is authorized to hold himself cut as a public officer, clothed with authority to represent others in the courts ; that where an attorney appears for a party the general rule is that a retainer will be presumed, and that the adverse party having no notice to the contrary may act upon such presumption. In Donohue v. Hungerford (1 App. Div. 528) the plaintiff had consulted an attorney in respect to the bringing of an action for libel, but before the summons was served revoked his authority. The complaint was served by him and the action placed at issue, and it was held that the pendency of the action was a good defense to one subsequently instituted by her through another attorney. The court said (p. 530): “ So in the case at bar the defendants had a right to rely upon the pendency of the action in the Superior Court, and if the plaintiff desired to relieve herself because of the alleged unauthorized com

SECOND DEPARTMENT, JULY TERM, 1903.

[Vol. 86.

mencement of that action, she was bound to move in the Superior Court and there obtain relief. The plaintiff knew of the commencement of the action in the Superior Court upon the day after it had been begun and that a complaint would be served, and she took no steps whatever to set aside this alleged unauthorized action of the attorney. The defendants were required to answer in that action or a judgment would have been taken against them by default. It was not for them to challenge the authority of the attorney. An attorney is an officer of the court and is presumed to act with authority; and a litigant who knows of an unauthorized action on the part of an attorney claiming to act for him, is bound to see that he is relieved from the presumptions which necessarily arise from the bringing of an action by an attorney." And in Abbett v. Blohm (54 App. Div. 422) the court, in refusing to set aside a judgment which had been obtained upon an unauthorized appearance hy attorney, said (p. 426): “Where it is shown that the appearance of the attorney is unauthorized, the court undoubtedly has power, in its discretion, to vacate the appearance and set aside the judgment, but it is only proper to exercise that authority where the application has been made promptly or the other party has lost no rights by the delay.”

The bank in this case had no pecuniary interests in the controversy between the plaintiff and Quinn. Its only concern was to pay over the money under judicial authority to the successful claimant and to be protected against any further demand. No circumstance occurred to cast a doubt upon the assumed authority of Fiske or to disturb the presumption of authority in his favor. There was no motion to remove him or for the substitution of another attorney in his place. The receipt of the notice not to pay to any one other than the plaintiff, although signed by a different attorney than the one in charge of the litigation on the record, was not in itself calculated to excite suspicion as to the authority of the latter, especially in the absence of any notification of the lack of such authority. The prompt payment of the money, in accordance with the terms of the judgment, has not been shown to have been collusive, or in any respect in bad faith. To uphold the order appealed from may result in possible loss to the appellant, which the slightest care and prudence on the part of the plaintiff in openly repudiating the alleged unauthorized acts of Fiske would have easily avoided.

App. Div.]

SECOND DEPARTMENT, JULY TERM, 1903.

Having intentionally permitted the suit to proceed to judgment and the mandate of the judgment to be carried out without any intimation to the other parties of her objections or her dissatisfaction, the plaintiff has lost the right to now obtain redress at their expense, and the order should accordingly be reversed and the judgment reinstated.

GOODRICH, P. J., BARTLETT, JENKS and HOOKER, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and judgment reinstated.

ANN GLENNON, as Administratrix, etc., of RICHARD GLENNON,

Deceased, Appellant, v. Erie RAILROAD COMPANY, Respondent.

Negligence when a complaint may be dismissed although a verdict has been rendered

in favor of the plaintiff when a new trial should be granted testimony by a witness that he did hear an engine bell or whistle - admission by him that he had stated the contrary but was not under oath.

The judge presiding at the trial of an action to recover damages resulting from

the death of the plaintiff's intestate caused by the alleged negligence of the defendant, may, if there is no evidence that the defendant was guilty of negligence, dismiss the complaint, notwithstanding that he has previously submitted the case to the jury upon certain specific questions of fact and the

jury has found in favor of the plaintiff thereon. If the evidence given on the trial of the action is such that the case should have

been submitted to the jury, but the verdict rendered by the jury is against the weight of evidence, the court has no power to dismiss the complaint, but

should set aside the verdict and grant a new trial. While the fact that a whistle was not sounded or a bell rung upon a locomotive,

may, under some circumstances, be established by the testimony of witnesses to the effect that they did not hear such bell or whistle, the mere unfortified fact that a single witness, not shown to be listening, on an occasion when there was considerable other noise, did not hear the bell or whistle, is not sufficient evidence to support a finding that these signals were not given, particularly when the force of such witness' testimony is weakened by a statement made the day following the occasion in question, to the effect that he did hear the bell and by a suggestion made by him in his testimony that he was only required to tell the truth when he was under oath.

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APPEAL by the plaintiff, Ann Glennon, as administratrix, etc., of Richard Glennon, deceased, from a judgment of the Supreme Court

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