Bank of Buffalo v. Lowry

22 Wend. 630

• Court: New York Supreme Court
• Decided: June 15, 1840
• Status: Published

Opinion

By the Court,

Co wen, J.

It is impossible to resist the conclusion, that this retainer, and the proceeding upon it were for the mere purpose of delay. The retainer was of a remote and obscure attorney, who instituted a course of serving papers through a distant agency still farther calculated to conceal the place of his residence from the plaintiff’s attorney, and in itself to work a delay that might have thrown the cause over the circuit, which was near at hand. The defendants’ attorney swears that his retainer was bona fide, but he forbears to account for the defendants passing over a numerous and well known class of the profession residing much nearer the defendants, or the sending papers from Cortland to the city of New-York for service on an agent there, when it is obvious that a direct service would have been much more convenient for him. No merits are sworn to, though one of the defendants makes an affidavit. Looking at the circumstances as matter of evidence, I am satisfied the course pursued here by the defendants and their attorney was a fraud on the rules of legal practice. This fully warranted the plaintiff’s attorney in treating the retainer and plea as nullities, and proceeding as if no attorney had been retained.

I will not say that this sort of expedient by failing debtors, is absolutely null to all intents and purposes. The plaintiff’s attorney must in such cases do his best to avoid the consequences of the fraud, by the ordinary service of papers and other steps, as if the defendant’s conduct Were bona fide; but if he cannot do so, 1 feel entirely justified, both on principle and authority, in saying that he may take such other method of practice as shall avoid the consequences intended to be Worked by the trick. It is like the case of a party skulking to avoid the service of a rule, with the view to an attachment. The law of the court is very strong, that this must be personal, for it is in the nature of process, and the party may finally be committed. Yet where he keeps out of the way to avoid the service, ,you may do the best you can ; and an attachment- may be granted on proof that due means of service have been taken and baffled. Green v. Prosser, 2 Dowl. Pr. Cas. 99. As there remarked by Lord Lyndhurst, C. B.: “ All these eases depend upon their own particular circumstances.” And being satisfied on the evidence that the party kept out of the way, in consequence of which the regular mode of service failed, the court considered this- equivalent to the usual mode. It is a solecism in such case, for the party to complain of injury by the step. Its real nature is to counteract his own fraud, an injury intended by him. With what propriety can he clamor for the ordinary notice, when he has done all in his power to prevent it, or defeat its effect ? It may be said you must move the court in limine, for leave to disregard the retainer or plea, as you do "for a substituted service. But that is not always so. A frivolous demurrer interposed to prevent carrying down the cause to trial is often disregarded, and always may be treated as a nullity; and the frivolity of the demurrer shown in. reply to a motion which seeks to use it, in order to set aside a trial as irregular. It is by no means an extenuation, much less a protection to fraud, that legal machinery is resorted to in its perpetration. This is the doctrine familiar to the criminal law, which treats the proceeding as absolutely void; and has even followed it with capital punishment. 2 Russ. on Cr. 143, Am. ed. of 1836.

Motion denied.