Page images
PDF
EPUB

Effray v. Masson.

tratrix, and upon presentation of which the same was rejected by a notice in writing signed by said administratrix, a copy of which said claim is annexed to the complaint in this action, and a copy of the rejection thereof is also hereto annexed.

That the administratrix made no offer in reference to this claim as provided by statute, and the deponent was thereupon retained to commence this action for the plaintiff.

That the judgment entered herein, including costs and extra allowance, is against the defendant in her representative capacity as such administratrix, and not against her individually.

That on the trial of this action the justice granted an extra allowance of five per cent to the plaintiff, to which defendant's counsel interposed no objection, and at the same time the justice, on the rendering of said verdict, directed in the minutes as follows, viz.: twenty days stay of execution after notice of entry of judgment, and thirty days to make a case.

That subsequently, on the 15th day of May inst., the defendant's attorney served a notice of motion to set aside the judgment and verdict, and for a new trial on the minutes, which motion was duly heard before Hon. Justice VAN WYCK at a trial term on May 19th inst., and an order was made and duly entered thereon denying the same, with ten dollars costs to the plaintiff; and on the same day the order to show cause in this present motion was served on deponent after an argument had before Hon. Justice VAN WYCK, and the eight days after notice of entry of judgment herein, and eleven days after service of notice of taxation of costs in this action had been served, as above mentioned.

Sworn to before me this 21st

day of May, 1891.

}

EDMUND HUERSTEL

WILLIAM J. GILROY,

Commissioner of Deeds, N. Y. Co.

Effray v. Masson.

"NOTICE OF REJECTION OF CLAIM.

"June 23, 1890.

"The within claim is hereby rejected for the reason that the same is an unjust and unlawful claim.

[merged small][ocr errors][merged small]

This then brought the whole question before the court as well as the question of irregularity. It is the same as if the motion was now made by plaintiff to allow the costs. The statements contained in the affidavit of plaintiff's attorney were not denied nor answered. This written rejection was absolute, and comes clearly within 1836, Code Civil Procedure.

EARL, J., in Carter v. Beckwith (104 N. Y. 239; 5 St. Rep. 617), says: "After such an unqualified refusal the plaintiff was not bound to go further before commencing his action in order to entitle him to costs."*

* See King v. Todd (21 N. Y. Civ. Pro. 114), where Mr. Justice BOOKSTAVER at trial term of the court of common pleas said: "Sections 1835 and 1836 of the Code provide that costs shall not be awarded against an executor or administrator except upon the two following conditions, which must concur: (1) plaintiff's demand must be presented within the time limited by the published notice requiring creditors to present their claims; and (2) the payment of the claim has been unreasonably resisted, or that the defendant has refused to refer." He also held that an administrator cannot be charged with costs of an action against him upon a claim against his decedent, in which he is defeated, unless the claim was presented to him in writing within the time limited by the published notice requesting creditors to present their claims, and this although the claim was presented to him verbally before said time elapsed, and also notwithstanding he has refused to refer the claim.

In Clark v. Corwin (21 N. Y. Civ. Pro. 108) the general term of the supreme court in the second department says (per DYKMAN, J.), "The claim was presented to the counsel for the executors, and rejected, and sufficient was stated by him at the time to constitute a refusal to refer. It is unnecessary to determine whether the claim VOL. XXII-5.

Effray v. Masson.

It is not necessary to obtain or present a statement of the facts certified by the judge before whom the trial took place in this court. Section 3343, Code of Civil Procedure, declares what are superior city courts. This court is not one of them. The administratrix having been exempted from the payment of costs personally, and is not therefore injured, cannot be heard to complain of the absence of the certificate of the judge who tried the case (Meltzer v. Doll, 91 N. Y. 365).

The order should be affirmed, without costs.

EHRLICH, Ch. J., and McGown, J., concurred.

was unreasonably resisted, as the refusal to refer was sufficient to justify the imposition of costs."

In Healy v. Murphy (21 N. Y. Civ. Pro. 13) costs were refused where there had not been a refusal to refer, and the great reduction of the claim effected showed that the claim had not been unreasonably resisted.

A verbal offer to refer is sufficient (Lanning v. Swarts, 9 How. Pr. 434; Roberts v. Pike, 19 N. Y. Civ. Pro. 422).

Costs upon reference of claim against a decedent's estate are not governed by Code Civil Procedure, sections 1835, 1836 (Hallock v. Bacon, 21 N. Y. Civ. Pro. 255).

Poole v. Belcha.

POOLE, APPELLANT, v. BELCHA, RESPONDENT.

COURT OF APPEALS ; FEBRUARY, 1892.

$ 66.

Attorney's lien-when enforceable and how enforced.

The provisions of section 66 of the Code of Civil Procedure, giving an attorney a lien upon his client's cause of action or counterclaim for his services, does not prevent parties from settling and releasing judgments, suits, and proceedings; but if the release has the effect of depriving the attorney of his costs the court has the power to and should set it aside and protect the attorney's lien; it cannot, however, be assumed that a settlement is in fraud of the attorney's rights, and until the lien is asserted in some way, the judgment remains the property of the client.

To warrant the court in disregarding a settlement and release made in an action it must be shown that to give full effect to them will operate as a fraud upon the attorney, or at least to his prejudice, by depriving him of his costs or turning him over to an irresponsible client.

Lee . Vacuum Oil Co. (126 N. Y. 579) followed.
Where after the settlement of an action between the parties the de-

fendant's attorney moved to strike an appeal from the general
term calendar and affirm the judgment, and the motion was
granted because the attorney for the defendant asserted a lien for
costs--Held, that so far as the order made affirmed the judgment
it was erroneous and should be set aside, no fraud upon the at-
torney in the settlement having been shown that would justify
the court in disregarding it.

(Decided February, 1892.)

Appeal by the plaintiff from an order of the general term in the third department striking an appeal from the calendar of that court and affirming a judgment entered in favor of the defendant.

Poole v. Belcha.

The facts appear in the opinion.

James Coupe, for plaintiff, appellant.

Eugene E. Sheldon, for defendant, respondent.

O'BRIEN, J.-This is an appeal from an order of the general term striking an appeal to that court from the calendar, and affirming, with costs, a judgment for the defendant entered upon a verdict. The action was brought to recover certain specific personal property, which was delivered to the plaintiff at the commencement of the action. On the trial the plaintiff failed, and a verdict was rendered for the defendant. A motion was made by the plaintiff for a new trial on the minutes, which was denied June 24, 1887. The plaintiff appealed to the general term from this order July 23, 1887. Judgment was entered on the verdict December 1, 1887, but no appeal was taken from this judgment. October 25, 1887, the plaintiff served a proposed case containing exceptions, and subsequently amendments thereto were served by the defendant, but the case was not filed or certified, and no copy was served on the defendant's attorney. On an affidavit showing these facts the defendant's attorney gave notice of a motion to be made at the general term September 8, 1891, for an order striking the appeal from the calendar and for an affirmance of the judgment. The verdict upon which the judgment was entered was for $286.28, the value of the property as found by the jury. The motion to strike the cause from the calendar and affirm the judgment was met by an affidavit on the part of the plaintiff showing that on September 2, 1891, the plaintiff paid to the defendant $300 and settled the case; that upon such settlement it was agreed that each party should pay his own attorney, and thereupon the defendant executed and delivered to the plaintiff a general release under seal, a copy of which was attached to the

« PreviousContinue »