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App. Div.]

SECOND DEPARTMENT, MARCH TERM, 1899.

Eliza TAYLOR, as Administratrix, etc., of Isaac Sherwood Taylor,

Deceased, Plaintiff, v. The Long Island RAILROAD COMPANY and f 65
The New YORK AND BROOKLYN Brewing COMPANY, Defendants.
JAMES C. BUSHBY, Appellant; Ezra A. TUTTLE, Respondent.

38 595

49 26 38 595

2526 38

595 72 81

Costs an attorney receiving them from a partner who is afterwards obliged to pay

them to his client will not be ordered to repay them on a summary application.

An attorney who, having prosecuted an action to judgment, under a contract by

which he was to have a percentage of the “amount recovered,” and having retained the costs under the impression that he was entitled to do so, divided them with several other attorneys with whom he had entered into a quasi partnership, and was subsequently, by order of the court, compelled to pay the

entire amount of such costs to his client. Held, that he was not entitled, upon a summary application, to an order of the

court requiring one of the latter attorneys to pay over to him the portion of the costs which such attorney had received.

APPEAL by James C. Busliby from so much of an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 25th day of November, 1898, as orders and directs the said James C. Bushby to pay to Ezra A. Tuttle the sum of eighty-three dollars and fortyeight cents.

L. M. Berkeley [James C. Bushby with him on the brief], for the appellant.

Ezra A. Tuttle, for the respondent.

PER CURIAM:

The rule is so well established in this State that "summary proceedings of this character are not sustained, except upon clear proof that the relation of attorney at law and client existed, and that an attorney at law had received the money or the property of a client while acting in this professional capacity, and had failed to account for it to the client” (Matter of Hillebrandt, 33 App. Div. 191. See, also, Matter of Ilaskin, 18 Hun, 42 ; Matter of Sardy, 47 N. Y. St. Repr. 308), that it does not seem to be necessary to enter into any extended discussion of this matter. The admitted facts are that the plaintiff in this action recovered a judgment against the defend

SECOND DEPARTMENT, MARCH TERM, 1899.

[Vol. 38.

ants, with certain costs. She had entered into a contract with her attorney, Ezra A. Tuttle, by which she agreed to pay " said attorney for his services 30 per cent of the amount recovered." Tuttle had previously entered into a quasi partnership or understanding with James C. Bushby, the appellant, Arthur T. Stoutenburgh and Levi W. Naylor, under which arrangement the four were to divide the fees of the matters which they should litigate, and Tuttle was to appear as the attorney of record. On collecting the judgment for the plaintiff Tuttle retained the costs, believing that they belonged to him, and these were divided equally between the four persons named. Subsequently the plaintiff, through her attorney, made a motion at the Special Term to compel Tuttle to pay over these costs to her, and, upon the motion being argued, an order was made directing Tuttle to turn over the sum of $333.90. This order was complied with, Stoutenburgh and Naylor contributing their share of the fund to Tuttle. In the meantime Busiiby had become a judgment creditor of Tuttle in the sum of $330, and he offered to credit Tuttle with $83.48, his portion of the fund which Tuttle was ordered to pay over; but Tuttle was not satisfied with this arrangement and made a motion at the Special Term to compel Bushby to pay over the $83.48 in cash. Objection was made to the jurisdiction of the court to make such an order, but the court ignored the objection, and Bushby was directed to pay over the sum in cash.

It seems clear to us that the court below has erred in granting this order; that the facts stated show merely the relation of debtor and creditor between Bushby and Tuttle, in nowise connected with the affairs of a client. As was said in Matter of Haskin (supra) “ It is not every debt due from a lawyer that can be collected by order of the court. Attorneys have the same right to have their liabilities established in the ordinary channels of the law as other persons, except where the claim is for money received for their clients. In such cases the courts deal with them as their own officers, and compel a proper discharge of the duties they owe to their clients.” (See Bowen v. Smidt, 49 N. Y. St. Repr. 647.) “It is because of the relations existing between attorneys and clients," say the court in Mutter of Schell (58 Hun, 410), “ that the client is allowed to pursue this extraordinary remedy, and it is because it is the duty of the court to see that the attorney acts with fidelity, as

App. Div.] SECOND DEPARTMENT, MARCH TERM, 1899. well to the court as to the client, that it assumes this jurisdiction.” (See, also, Stout v. Smith, 98 N. Y. 25.)

The order appealed from should be reversed, with costs, and the motion should be denied, with costs.

All concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied.

BELLA CARDONNER, as Administratrix, etc., of John C. CARDON

NER, Deceased, Appellant, v. TuE METROPOLITAN STREET Rail

WAY COMPANY, Respondent. Negligence -- bicycle rider in a city street darting from behind one street car and run

ning into another approaching one. An expert bicycle rider, familiar with the streets of New York, who was riding a

bicycle in that city behind a car going down town, turned out from behind the car as it stopped before entering a curve, passed in front of it, and entered upon the other track where he was killed by an approaching uptown car, which,

when he darted from behind the downtown car, was only twenty-five feet distant. In an action brought to recover the damages resulting from his death it was Held, that, considering the interval of time between the intestate's appearance

and the collision, negligence could not be imputed to the defendant, and that the facts tended to show affirmatively the existence of contributory negligence on the part of the intestate, rather than its absence.

APPEAL by the plaintiff, Bella Cardonner, as administratrix, etc., of John C. Cardonner, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 2d day of August, 1898, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term, and also (as stated in the notice of appeal) from an order denying the plaintiff's motion for leave to go to the jury upon the question of the negligence of the defendant and the contributory negligence of the plaintiff's intestate.

This appeal was transferred from the first department to the second department.

The action was brought to recover damages resulting from the . death of the plaintiff's intestate alleged to have been caused by the negligence of the defendant.

SECOND DEPARTMENT, Marcu TERM, 1899.

[Vol. 38.

Alfred C. Cowan, for the appellant.

Charles F. Brown (Henry A. Robinson, with him on the brief], for the respondent.

PER CURIAM:

The appellant calls the attention of the court to a great variety of rules laid down by the courts in dealing with questions of negligence, citing a long line of authorities which we are bound to respect; but the difficulty is that none of these rules were made to fit the facts as established on the trial of this action, and we are forced to agree with the learned trial court that the plaintiff has failed to establish her right to recover.

Plaintiff's intestate was an expert bicycle rider, a teacher in a bicycle academy, was familiar with the streets of New York, and particularly with that portion of the streets where the accident complained of occurred. This was at the corner of Fifty-third street and Seventh avenue, where the cars from Fifty-third street run in on to the Seventh avenue line. The evidence shows that he was riding behind a car going downtown; that the car stopped for the signal before entering upon the curve, and that plaintiff's intestate turned out and passed the car, crossing the track in front of it and entering upon the uptown track, where he was met and struck by a car going uptown. There was only a distance of twenty-five feet from the point where plaintiff's intestate dodged from behind the car which he was following into the track on which the car that struck him was advancing; and as both were going in opposite directions toward the same point, the interval of time between his appearance and the contact must have been so short that it is impossible, with fairness, to impute negligence to the defendant. The plaintiff's intestate was fainiliar with the dangerous situation into which he was riding; to him the danger was known and obvious, and there is an entire lack of evidence tending to show that he was free from contributory negligence. Indeed, the evidence tends rather to affirmative proof of contributory neg. ligence than to the opposite conclusion, and the learned trial court very properly dismissed the complaint.

The judgment should be affirmed, with costs.

Judgment unanimously affirmed, with costs.

App. Div.]

SECOND DEPARTMENT, MARCH TERM, 1899.

Louis S. STERRITT and ARTHUR H. GRANT, as Executors, etc., of

David BEVERIDGE, Deceased, Appellants, v. Tue MANHATTAN LIFE INSURANCE COMPANY of New York and Others, Defendants, Impleaded with Martin L. LEE, as Administrator, etc., of MARION BEVERIDGE, Deceased, and John F. BEVERIDGE, Respondents, and FRANCES R. EMERSON, Appellant.

to whom payable where

Life insurance - on a son's life for the benefit of his mother

the mother dies before the son.

A policy of iusurance on the life of a son, issued on an application signed by him

on behalf of his mother, which is, by its terms, payable to the mother and her executors, administrators and assigns, and recites that she has an interest in the son's life to the full amount of the sum named therein, belongs, in case of the death of the mother before the son, to the mother's estate, and her administrators have no authority to assign it, except for a valuable and sufficient

consideration. Such a policy cannot be construed as indicating an intention on the part of the

son that it should be paid to the mother if she survived him, and, if not, to such beneficiary as the son might designate.

APPEAL by the plaintiffs, Louis S. Sterritt and another, as executors, etc., of David Beveridge, deceased, and by the defendant Frances R. Emerson, from a judgment of the Supreme Court in favor of the defendant Martin L. Lee, as administrator, etc., of Marion Beveridge, deceased, entered in the office of the clerk of the county of New York on the 11th day of Angust, 1898, upon the decision of the court rendered after a trial at the New York Special Term, ad judging that the defendant Martin L. Lee, as administrator, etc., of Marion Beveridge, deceased, is entitled to the policy of insurance sued upon and to the proceeds of said policy on deposit with the court.

This appeal was transferred from the first department to the second department.

Hubert E. Rogers, for the plaintiffs, appellants.

Gilbert W. Minor, for the defendant Emerson, appellant.

Robert V. S. Samuels, for the defendants Martin L. Lee, as administrator, etc., and John F. Beveridge, respondents.

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