13

sons, or with the adversary's attorney,14 which will be evidence against or bind his client.

The attorney cannot, under the guise of exercising such control, make an agreement the primary function of which is to foreclose the substantial rights of his client, although a stipulation within his power as controlling the proceedings in the cause may incidentally have such an effect. On the other hand, the incapacity of the client to control the proceedings does not prevent his making an agreement altering his substantial rights, although it may incidentally affect the course of proceeding.

For any agreement respecting the litigation or its subject which lies on the border along this ill-defined line, the attorney should seek his client's signature, and require that of the adverse party, and the countersigning of both attorneys should be added.

The stipulations here treated are such as do not require the client's signature.

The power of the attorney to stipulate in restraint of his client's remedy does not sanction the making of such stipulations after judgment, in such sense that as executory stipulations they will bind the client.15

2.

before suit.]-A stipulation otherwise valid is not beyond the power of the attorney because made before the action was actually brought, if made after his retainer.16

An attorney has implied authority by virtue of his retainer to do whatever, in his judgment, may be necessary to advance his client's interests; to that end he can agree that the deposition of the opposing party be taken, and if he dies before the trial, that the deposition may be read upon the trial of another action brought by his representative for substantially the same cause of action.17

13 O'Brien . Weiler, 68 Hun, 64, 22 N. Y. Supp. 627.

14 Jefferson Bank r. Gossett, 45 Misc. 630, 90 N. Y. Supp. 1049. 15 Lovegrove . White, L. R., 6 C. P. 440 (holding the client not bound by a stipulation made after judgment to postpone execution on payment of part). But if the stipulation is executed on the part of the client, it is a good consideration for the reciprocal promise.

A nominal plaintiff cannot stipulate away the rights of the real plaintiff. Selleck v. Phelps, 11 Wis. 380.

16 Hefferman r. Burt, 7 Iowa, 320, 71 Am. Dec. 445 (agreement to appear in action on a promissory note, and that petition may be filed during term nunc pro tunc).

17 Ludeman t. Third Ave. R. R. Co., 72 App. Div. 26, 76 N. Y. Supp. 128.

3. after judgment.]-Much apparent discrepancy exists in the books, as to whether such power terminates with judgment. As a practical question the point is generally clear, the rule being that although a stipulation made before judgment is not invalid merely because it precludes appeal,18 yet after judgment the attorney's continued employment if it exists, is for a purpose as inconsistent with stipulating away the right to appeal as his employment before judgment is inconsistent with stipulating away the cause of action. The judgment, or the right to review it, is a new right, and the same principles which give him the power to control the proceedings before judgment, but without compromising, give him power, if acting after judgment, to control the subsequent proceedings without surrendering the right on which they in turn are founded.19

4. Writing necessary.]—A sound policy adopted by the New York general rules of court20 provides that "no private agree ment or consent between the parties or their attorneys, in respect to the proceedings in a cause, shall be binding, unless the same shall have been reduced to the form of an order by consent, and entered, or unless the evidence thereof shall be in writing, subscribed by the party against whom the same shall be alleged, or by his attorney or counsel." 21

Similar requirements exist in most of the States, either by statute or rule of court.

An attorney who seeks to hold his adversary on conflicting evidence to an agreement without written stipulation, must make out beside his evidence of the alleged agreement, a waiver, on the ground of an equitable estoppel, or fraud, or unfair advantage, to take the case out of the wholesome general rule. On these grounds an oral stipulation, adequately proved, may be

18 See Smith v. Barnes, 9 Misc. 368, 29 N. Y. Supp. 692.

19 This subject is more fully considered under SERVICE, pp. 385, 386 of this volume.

20 N. Y. Gen. Rule No. 11. See Bradford v. Downs, 25 App. Div. 581, 49 N. Y. Supp. 521. By statute to much the same effect in California. L. 1851, p. 49, § 9. Also in Indiana. Welch v. Bennett, 39 Ind. 136.

S. P., Huff v. State, 27 Geo. 424. And see Phillips v. Wicks, 38 N. Y. Super. Ct. 74 on p. 79 of this volume, note.

21 This rule has been held to not apply so as to nullify an oral agreement for the settlement of the controversy. Smith v. Bach, 82 App. Div. 608, 81 N. Y. Supp. 1057.

enforced22 or the party relying upon it will be relieved of the injurious consequences of having acted upon it.23

Stipulations made orally in open court, or before a referee acting as such, or a master,24 and relating to the cause in hand, are not, if entered in the minutes, within the mischief aimed at by the rule, and the record so made will suffice;25 if not entered in the minutes of the referee the stipulation will not be enforced.26

An oral stipulation entered into between the parties and their attorneys in open court is as obligatory as though reduced to writ ing;27 it should be recited in the order entered.28

5. Power not merely presumed, but inherent.]- The power which an attorney has to stipulate in the cause thus is not (like

22 Burnham v. Smith, 11 Wis. 258 (holding it error to give judgment notwithstanding oral stipulation by plaintiff's attorney that defendant might go away and the cause should not be brought on before his return, on the faith of which defendant was absent).

People v. Stephens, 52 N. Y. 306, 311 (holding the State bound by the Attorney-General's oral statement that he should not appeal, it being acted on by the adverse party).

Auburn Savings Bank r. Brinkerhoff, 44 Hun, 142, 8 N. Y. St. Rep. 275 (oral stipulation as to fact, upon which adversary relies and does not produce evidence to establish, held, that the court should assume the fact to be as stipulated). S. P., Montgomery r. Ellis, 6 How. Pr. 326.

Henderson v. Merritt, 38 Geo. 232 (holding it error to strike out plea allowed by parol stipulation, the consideration of which the plaintiff had enjoyed).

23 Mut. Life Ins. Co. v. O'Donnell, 146 N. Y. 275 (alleged oral stipulation by plaintiff's attorney that the bid on foreclosure sale should equal the amount of the mortgage; the court considered that if such stipulation was established, and defendant had neglected to attend sale in reliance upon it, a deficiency judgment should be vacated and a re-sale ordered; but the court considered the oral stipulation of no binding force, and not to be carried into effect by the court).

No estoppel can be predicated upon the act of a person which in effect merely discharges a legal duty, though done in reliance upon the adversary's oral promise to discontinue the action pending, if the act is done. Connell v. Stalker, 21 Misc. 609, 48 N. Y. Supp. 77 (illegal expulsion of plaintiff from the defendant association).

24 Black v. Black, 206 Penn, 116.

25 Welch t. Bennett, 39 Ind. 136; Staples v. Parker, 41 Barb. 648. See also Slavin v. Germain, 64 Hun, 506, 19 N. Y. Supp. 492; Ballou v. Parsons, 55 N. Y. 673; Sproull v. Star Co., 45 App. Div. 575, 61 N. Y. Supp. 404, 7 Anno. Cas. 172; Lewis t. Wilson, 151 U. S. 551.

26 Patterson v. Knapp, 83 Hun, 492, 32 N. Y. Supp. 32. (But oral agreemnts as to extensions of time for referee to file his report, have been enforced without being entered in the minutes. See cases cited in the preceding note.) 27 Matter of Baldwin, 27 App. Div. 506, 50 N. Y. Supp. 873; Staples v. Parker, 41 Barb. 648; Meagher v. Galliards, 35 Cal. 602.

28 See, for example, the recital of the stipulation made in Van Tassell v. Beecher, 8 Misc. 26, 28 N. Y. Supp. 73.

some others imputed to an attorney) merely presumed until the contrary is shown. It is a part of his power to control the proceedings, and is inherent in his office as such, and though subject to the control of the court, cannot be withheld or impaired by the client except by revoking his authority as attorney.

28a

6. What matters are within attorneys' control.]— Under an ordinary retainer the general power of an attorney to control the proceeding in the cause, authorizes him to stipulate or consent to the opening of a default,29 or of a dismissal had without due adjudication;30 for what the court might do without his consent the court may confirm or recognize as valid though done by his consent.

So, it extends to the discontinuing of an action or discontinuing as against any part of the defendants by submitting to a nonsuit, or by any other form of discontinuance that does not bar or impair the right of action;31 also to agreeing on the mode of trial; the agreeing on facts, or admission of facts or evidence, for the purposes of trial; to waiving statutory requirements as te

28a See Lederer v. Lederer, 47 Misc. 471.

29 Latuch v. Pasherante, 1 Salk. 86 (holding that he may consent to accept joinder in issue, after he has signed judgment for want of the joinder in due time, and although contrary to the client's express orders).

30 Reinholdt v. Alberti, 1 Binn. 469, where, however, the decision was put upon the ground that it had long been the practice in Pennsylvania that defendant's attorneys could restore an action after non pros.

s. P., Read v. French, 28 N. Y. 285, where an attorney having fraudulently issued execution, his stipulation rectifying the effect by agreeing that the lien be postponed, was held within his authority, "because without such stipulation it could have been set aside on motion."

Contra, in Hoffman v. Cage, 31 Tex. 595, holding that non-suit of plaintiff ends the authority of defendant's attorney, who cannot afterward consent to reinstate the cause. Here the non-suit seems to have been for variance, and defendant had not been served.

31 Barrett v. Third Ave. R. R. Co., 45 N. Y. 628, 635, 636, and cases cited. The reason is that he has full control and discretion as to the mode of seeking the remedy and therefore may discontinue, and even sue again. Scott v. Elmendorf, 12 Johns. 317.

Whether the attorney has implied authority to release one of several joint defendants, or stipulate that in case of judgment against them his client shall release one, provided the stipulation be made before judgment. See Carstens v. Barnstorf, 11 Abb. Pr. (Ñ. S.) 442, where it was held that such a stipulation, if given after judgment, would be void as against the client, and where a stipulation made before judgment, to enforce it against one rather than another, was sustained.

proceedings;32 and, to stipulating that one cause abide the event of another.33

34

It does not extend to fixing an allowance of costs unknown to the law, but does extend to stipulating that a referee's compensation may be a sum in excess of the statutory rate.35

7. Stipulation not to appeal, etc.]—A stipulation to bar the right of appeal given by law should be so clearly expressed as to leave no doubt of the party's intention.36

It will not be effectual if a mere disclaimer of intent, neither mutual nor founded on some consideration, nor raising an estoppel or effectual waiver.37

If made before judgment, it may be made by the attorney with out the knowledge or consent of the client.38

If not made before judgment, and on a plainly fair mutuality or consideration, the signature of the party should be asked beside that of his attorney. 39

32 Beardsley . Pope, 88 Hun, 560, 34 N. Y. Supp. 846 (extension of time for justice of the peace to render judgment).

33 North Missouri R. R. Co. v. Stephens, 36 Mo. 150 (he being attorney on the record for the same client or party in both).

Slavin v. Germain, 64 Hun, 506, 19 N. Y. Supp 492 (reserving the question of damages).

34 O'Keefe v. Shipherd, 23 Hun, 171.

So, in First Nat. Bank r. Tamajo, 77 N. Y. 476, the court refused to sustain a stipulation allowing a referee to fix his own rate of compensation, on the ground that it was not sanctioned by the statute as to fees, and adding that it was not within the power of an attorney. The court considered that if an agreement for a larger rate is made at all, it should be made upon the judgment and professional responsibility of counsel. Followed in Griggs r. Day, 135 N. Y. 469; N. Y. Mut. Sav. Assn. v. Westchester Fire Ins. Co., 98 App. Div. 285, 90 N. Y. Supp. 710.

35 Mark r. Buffalo, 87 N. Y. 184 (the statutory provision that the parties may stipulate as to such fees is satisfied by a stipulation made by the attor neys, and without special authority so to do). Wolff v. Horn, 9 Mise. 100, 29 N. Y. Supp. 75 (such stipulations cannot be annulled or disregarded in the absence of fraud or collusion).

It has been held that the attorneys cannot, by a stipulation that a judg ment shall be without costs, deprive the court of its discretionary power to award costs. Landon v. Walmuth, 76 Hun, 272, 27 N. Y. Supp. 717. (This decision is of doubtful authority.)

36 Stedeker v. Bernard, 93 N. Y. 589.

37 Ogdensburgh, etc., R. R. Co. v. Vermont & Can. R. R. Co., 63 N. Y. 176. 38 Smith v. Barnes, 9 Misc. 368, 29 N. Y. Supp. 692, 24 Civ. Pro. Rep. 49, People ex rel. Burby . Auburn, 85 Hun, 601, 33 N. Y. Supp. 170.

30 People . Mayor, etc., of N. Y., 11 Abb. Pr. 66 (withdrawal after judg ment, of appeals by attorneys, both agreeing not to appeal or apply for a new trial within the time allowed by law, held void, the court saying: "The right of appeal is given by law to suitors, and that right cannot in my judgment, be taken away without their consent. It is not for him to judge as to their interest in submitting to a decision against them. The commen council, as the legislature for the city, has alone the right to decide whether