Bailey v. Murphy

New York Supreme Court

Bailey v. Murphy

4 N.Y.S. 579, 22 N.Y. St. Rep. 102, 1889 N.Y. Misc. LEXIS 1608

DecidedFebruary 11, 1889

StatusPublished

This text of 4 N.Y.S. 579 (Bailey v. Murphy) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bailey v. Murphy, 4 N.Y.S. 579, 22 N.Y. St. Rep. 102, 1889 N.Y. Misc. LEXIS 1608 (N.Y. Super. Ct. 1889).

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Opinion

Barnard, P. J.

The plaintiff recovered a judgment against the defendant for $1,000 damages and $132.92 costs, in May, 1888. The costs were not paid to the plaintiff’s attorney, but the plaintiff settled the judgment under circumstances which justify the inference that the settlement was made to enable the defendant to remove the plaintiff as a witness against the defendant upon an indictment pending against him, as the plaintiff at once left the state. The judgment was not canceled until after the plaintiff had absconded from the state. The amount paid to settle the claim was only $300. The attorney’s bill was the subject of conversation at the settlement, and the defendant stated that the plaintiff promised to pay these costs. The good faith of this pretense is very doubtful, when the case shows that the plaintiff went out of the state at once, and before the plaintiff’s attorney was informed of the settlement, and under circumstances which indicated fraud and collusion between the parties to the injury of the plaintiff’s attorney. A settlement does not destroy the lien of the attorney, if made without his consent. Coster v. Ferry Co., 5 Civil Proc. R. 146, affirmed 98 N. Y. 660; Quinlan v. Birge, 43 Hun, 483. The cases cited which hold that notice of the lien as to compensation, in addition to the taxable costs, is necessary, all refer to a settlement in good faith. Here, as has been observed, the settlement was not made in good faith. The order should be affirmed, with costs. All concur.

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Barnard, P. J.

The plaintiff recovered a judgment against the defendant for $1,000 damages and $132.92 costs, in May, 1888. The costs were not paid to the plaintiff’s attorney, but the plaintiff settled the judgment under circumstances which justify the inference that the settlement was made to enable the defendant to remove the plaintiff as a witness against the defendant upon an indictment pending against him, as the plaintiff at once left the state. The judgment was not canceled until after the plaintiff had absconded from the state. The amount paid to settle the claim was only $300. The attorney’s bill was the subject of conversation at the settlement, and the defendant stated that the plaintiff promised to pay these costs. The good faith of this pretense is very doubtful, when the case shows that the plaintiff went out of the state at once, and before the plaintiff’s attorney was informed of the settlement, and under circumstances which indicated fraud and collusion between the parties to the injury of the plaintiff’s attorney. A settlement does not destroy the lien of the attorney, if made without his consent. Coster v. Ferry Co., 5 Civil Proc. R. 146, affirmed 98 N. Y. 660; Quinlan v. Birge, 43 Hun, 483. The cases cited which hold that notice of the lien as to compensation, in addition to the taxable costs, is necessary, all refer to a settlement in good faith. Here, as has been observed, the settlement was not made in good faith. The order should be affirmed, with costs. All concur.

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Bluebook (online)

4 N.Y.S. 579, 22 N.Y. St. Rep. 102, 1889 N.Y. Misc. LEXIS 1608, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bailey-v-murphy-nysupct-1889.