Brown v. Comstock

New York Supreme Court

Brown v. Comstock

10 Barb. 67

CourtNew York Supreme Court

DecidedOctober 15, 1850

StatusPublished

Cited by3 cases

This text of 10 Barb. 67 (Brown v. Comstock) 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

Brown v. Comstock, 10 Barb. 67 (N.Y. Super. Ct. 1850).

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Opinion

By the Court Mitchell, J.

In opposition to, this motion, Comstock admits that he executed the satisfaction pieces and the consent; but says that he did not know of the clause in the consent as to his paying the costs of this suit. If that clause was inserted by mistake, it may be ground for application to the court to correct that part of it. But still it is admitted that the agreement was, that this suit should be discontinued, and the two judgments in favor of Comstock should be satisfied of record. There is no reason, therefore, so far as Comstock is concerned, why his stipulation to discontinue this suit should not be carried out.

His attorney insists, however, that he has a lien for the -costs in these suits; that the two judgments are entirely for costs and disbursements, and properly belong to him alone, and that Brown must have known this, and so had no right to settle the suits without the consent of Brown’s attorney, as Comstock is insolvent. So far as the two judgments are concerned, there is some plausibility in this argument; but if any wrong is done to the attorney as to those two cases, the place for relief is in the courts in which those judgments are entered. As to the costs on the writ of error in this court, the attorney has no lien for them until judgment. Before that, it is uncertain who will be entitled to them; in whose favor the court may decide—and whether it will give costs or not—and until then it is in the power of the legislature so to alter the law as not to allow costs over to the successful party in such a case. 1STeither can it be that a defendant in error is bound to continue to defend even a writ of error, against his will, to help his attorney to get the costs then accrued, or what might thereafter accrue. If parties choose to terminate a litigation, they should always be allowed to do it as they please, when it does not interfere with vested rights of their attorney

The motion to strike the cause from the calendar should be allowed, but without costs.

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By the Court Mitchell, J.

In opposition to, this motion, Comstock admits that he executed the satisfaction pieces and the consent; but says that he did not know of the clause in the consent as to his paying the costs of this suit. If that clause was inserted by mistake, it may be ground for application to the court to correct that part of it. But still it is admitted that the agreement was, that this suit should be discontinued, and the two judgments in favor of Comstock should be satisfied of record. There is no reason, therefore, so far as Comstock is concerned, why his stipulation to discontinue this suit should not be carried out.

His attorney insists, however, that he has a lien for the -costs in these suits; that the two judgments are entirely for costs and disbursements, and properly belong to him alone, and that Brown must have known this, and so had no right to settle the suits without the consent of Brown’s attorney, as Comstock is insolvent. So far as the two judgments are concerned, there is some plausibility in this argument; but if any wrong is done to the attorney as to those two cases, the place for relief is in the courts in which those judgments are entered. As to the costs on the writ of error in this court, the attorney has no lien for them until judgment. Before that, it is uncertain who will be entitled to them; in whose favor the court may decide—and whether it will give costs or not—and until then it is in the power of the legislature so to alter the law as not to allow costs over to the successful party in such a case. 1STeither can it be that a defendant in error is bound to continue to defend even a writ of error, against his will, to help his attorney to get the costs then accrued, or what might thereafter accrue. If parties choose to terminate a litigation, they should always be allowed to do it as they please, when it does not interfere with vested rights of their attorney

The motion to strike the cause from the calendar should be allowed, but without costs.

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Bluebook (online)

10 Barb. 67, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brown-v-comstock-nysupct-1850.

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