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Opinion by WOODRUFF, J.

The answer lies in the suggestion already made, that the law warrants a party in giving faith and confidence to one who by law is authorized to hold himself out as a public officer, clothed with power to represent others in the Courts; and besides this, the consequences of the contrary rule would often be altogether disastrous.

Evidence would be lost; witnesses die; the Statute of Limitations bars claims; and death of parties themselves might often happen. In various ways, to set aside proceedings at the end of a protracted litigation would be to work inevitable wrong to the party who had relied upon an appearance.

It is said that proof of the authority by the attorney to appear and prosecute should be demanded, if the party would be safe.

If such demand could in all cases be insisted upon, it would be only one step towards safety. It might often be practically ineffectual. Ex parte evidence of authority might be produced, and yet, if the party might afterwards impeach it, the question would again arise in all its force. Besides, it is not the practice to require attorneys to produce their authority, except in special cases. No doubt there is power in the Courts to order it. It has sometimes been done (The Ninety-nine Plaintiffs v. Vanderbilt, 4 Duer, 632).

When, pending a litigation, the authority of the attorney to appear is denied, and application is made in due season, the Court, if probable cause appears, would in general protect the party applying.

Still the general rule remains, that a retainer will be presumed, and the adverse party, having no notice or ground of suspicion, may act on that presumption (3 Merivale, 12; 2 Mylne & Keen, 1; 1 Ves. Jr. 196; 6 Johns. 297; 9 Page, 496).

And in general, where there are no circumstances of suspicion, or facts indicating fraud, and no evidence of bad character discrediting the appearance, the Courts do not require a

Opinion by Woodruff, J.

reputable and responsible attorney to exhibit his authority to appear (see 6 John. 34; 5 Duer, 643).

It is, however, suggested, that as in ejectment the Defendant is authorized by statute to require the attorney for the Plaintiff to produce his authority (2 Rev. Stat. 305), this action should be deemed an exception to the general rule, and it be held that the Defendant's own laches have caused his misfortune, if it afterwards appears that the Plaintiffs did not authorize the suit.

But it is obvious that the statute itself does not furnish complete protection. It only makes the production of apparent written authority, sustained by the affidavit, presumptive evidence. And if the authority does not actually exist, the same question will arise in ejectment as in other actions— How far is the Plaintiff bound by the appearance of an attorney for him? And as respects an appearance for a Defendant, the statute makes no provision.

I do not think, therefore, that the omission of the Defendant to demand the production of authority, where he has nothing to put him on his guard, awaken his suspicion, or to lead him to distrust the good faith of the attorney who prosecutes the action, should change his right to insist upon his judgment, when it is not claimed that the attorney is not of full and sufficient responsibility to answer to the Plaintiff for any costs or other damage he may have sustained.

In Bean v. Mather (1 Daly, 440) the Court do no more than exercise their general discretion to open a judgment and let a Defendant in to plead under special circumstances, in which it was equitable and proper, although it is quite true that observations are made, in the opinion of the Court, in derogation, of the justice of the rule I have been considering, and, as I think, overlooking its proper foundation and the policy of its general maintenance. It is at least doubtful whether the Code of Procedure, as amended in 1862, affects the question on either side.

It was settled before the Code was adopted, that a deed of

Opinion by Woodruff, J.

lands held in adverse possession was good against the grantor and his heirs, and against strangers, though void as against the party in possession of the lands at the time of its execution; that being void to the latter, the grantor could maintain the action to recover the possession, and the grantee could not, but that a recovery in the name of the grantor enured to the benefit of his grantee (Jackson v. Demont, 9 Johns. R. 55; Williams v. Jackson, 5 id. 489; 1 Johns. R. 159; 9 Wend. 516; 15 id. 164; Livingston v. Proseus, 2 Hill, 526).

When, therefore, the Code had, in section 111, provided that "Every action should be brought in the name of the real party in interest," a doubt arose whether an action to recover lands thus conveyed could be brought by any one. If brought in the name of the grantee, he could, as against the party in possession, show no title; for or against such party, his deed was void. If brought in the name of the grantor, it might be shown that he was not the real party in interest, because, if he recover, his recovery would enure, not for his own benefit, but for the benefit of the grantee.

The Code was therefore amended so as to exclude such a conclusion, by adding to the section the provision that "an action may be maintained by a grantee of land, in the name of a grantor, when the grant or grants are void by reason of the actual possession of a person claiming under a title adverse to that of the grantor at the time of the delivery of the grant." The purpose was, I think, to limit the operation of the section as previously enacted, and not to create any new authority as between the grantor and grantee for the use of the name of the former by the latter.

If by reason of the giving of the deed such authority was to be implied, very well; if not, I do not think the Code conferred


To the suggestion that the deed was given by the Appellants as executors, and such a deed did not warrant an action in the name of the Appellants as individuals, it must suffice to say that the Appellants have not seen fit, in their motion

Statement of the Case.

papers, to set out the will under which they convey; and the deed itself is apt to convey their own estate in the premises, and does not show that in giving the deed they were executing a naked power.

I think the order of the Supreme Court, requiring the Defendant to first endeavor to collect the costs from the grantee Gleason, was all to which the Appellants were entitled.

The order must be affirmed.


State Reporter.

THE COLUMBIAN INSURANCE COMPANY, RESPONDENT, V. SAMUEL STEVENS ET AL., APPELLANTS. Costs-Liability of Receiver to pay in full out of Assets--Preference over General Creditors.

In an action prosecuted by a receiver of an insolvent corporation, for the collection of an alleged money demand, for the enhancement of the fund, and for the benefit of those to whom it is ultimately to be paid, on failure to sustain such action the Defendant is entitled to his costs, to be paid to him immediately. He does not stand as a general creditor, and is not required to await the final administration, receiving only his pro rata with the other creditors.

It is not in accordance with any rule of justice or equity toward third parties that such actions should be prosecuted by a company or its representative, otherwise than at the expense and risk of the fund which is thereby sought to be increased.

The Defendant being entitled to his costs immediately from the fund, and the motion being to require the receiver to pay such costs from the fund, it did not rest in discretion to refuse such order.

To make such order is not giving a preference to the Defendant in the

Costs-Liabiltiy of assignee or representative-Priority. 58 N. Y. 609; 12 Abb. N. S. 255; 11 Abb. N. C. 150 ( 65 How. P. 244); 37 Misc. 474 (75 N. Y. Supp. 1057) 3. Dem. 298; 4 Dem. 523; 2 Con. 43 (8 N. Y. Supp. 652;) 12 Civ. Proc. 34.

Opinion by WOODRUFF, J.

payment of a debt; it is merely requiring the fund to bear and pay the expense incurred for its own benefit or increase.

APPEAL from an order of the Supreme Court, duly affirmed by the General Term in the First District. This action was commenced by the Plaintiff on the 9th of January, 1866, but on the 23d of the same month, and before the Defendants appeared, receivers of the Plaintiff's property were appointed by the Supreme Court, and the action was prosecuted by the receivers and their successor to trial. The action was an ordinary suit at law for the recovery of money only. On a trial before a referee the Defendants obtained a report, upon which judgment was entered for their costs of suit.

The Defendants thereupon applied by motion for an order that the receiver pay such costs out of funds in his hands, showing by affidavit that he had funds in his possession, as such receiver, to a much larger amount. The nature of the receivership was not shown by the papers, nor does it appear to what extent there are claims of creditors or others to the funds in the hands of the receiver.

The motion was denied at Special Term, and the order was affirmed in General Term.

The Defendants appealed to this Court.

Ira D. Warren for Appellants.

T. G. Shearman for Respondent.

WOODRUFF, J.-The right of the Defendants to have judgment for their costs in such an action as the present, brought against them for the recovery of money only, is absolute, as well by the law before as since the Code of Procedure.

There is no claim nor ground of claim that the allowance. of costs in the action was discretionary. The liability of the receiver, in whom the alleged cause of action became vested after the summons herein was served, and by whom the action was prosecuted, is made, by section 321 of the Code, the same as if he had caused himself to be made a party. The questions here are, therefore:

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