Emerson Garden Electric Co. v. Seaboard Surety Co.

23 A.D.2d 624, 257 N.Y.S.2d 722, 1965 N.Y. App. Div. LEXIS 4797

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 25, 1965
• Status: Published

Opinion

Judgment unanimously affirmed, with costs. Memorandum: In affirming the judgment we do not adopt the reasoning of the court below in toto. We hold only that there was in the agreement executed by the parties on May 16, 1962 an implied promise by defendant that, in pressing claims against the Power Authority arising out of the transmission line contracts, it would prosecute and protect the interests of plaintiffs as well as its own. Relying upon such promise, plaintiffs contracted away their right to guide and protect their- own interests in the claims against the Power Authority and to be represented by attorneys of their own choosing. The disclaimer by defendant’s attorney of any interest in plaintiffs’ welfare constitutes a breach of the implied agreement and is a basis for the judgment rendered in favor of plaintiffs. The attorneys designated by plaintiffs and by defendant are directed to act together, each in the presentation and prosecution of any claim and interest of his own client against the Power Authority arising out of the transmission line contracts and to co-operate with equal right to participate in all litigation, conferences, negotiations and pretrial procedures. The attorneys should exchange copies of all correspondence which they may have with the Power Authority or its representatives. (Appeal from judgment of Niagara Trial Term granting a declaratory judgment to plaintiff as to presentation of claims against the Power Authority.) Present — Williams, P. J., Goldman, Henry, Noonan and Del Vecchio, JJ.