Hoffman v. Rowley

13 Abb. Pr. 399

Opinion

By the Court

Footnotes

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*— Balcom, P. J.

—It.is provided by statute, that “ when any attorney or solicitor shall die, be removed or suspended, ór cease to act as such, the person for whom he was acting shall be notified to appoint another attorney or solicitor, in such manner as the court shall direct, at least thirty days-before any proceeding shall be had against such person. (3 Rev. Stat., 5 ed., 477, § 54.) In Jewell a. Schouten (1 Comst., 241), the attorney for the plaintiff in error removed from the State, and a notice was served upon the plaintiff to appoint another attorney, which he neglected to do; and the attorney for the defendant in error moved ex parte to dismiss the writ of error; and the court held that notice of the motion should have been given to the plaintiff in error, and therefore denied the motion without prejudice.

I think there can be no doubt that when the attorney of a party has died, and such party neglects to appoint another attorney, in such manner as the court shall direct, for thirty days after notice to appoint one, notices in the cause may thereafter be served on such party. The attorney for the plaintiff in this cause died in 1859, and the plaintiff was duly served witli a notice to appoint another attorney in Hay, 1861, but he did not appoint one. _ It was, therefore, proper for the defendant’s attorney to serve notices in the cause upon the plaintiff, in October of that year; and the notice of argument was regularly served on him in that month for the Broome general term, held on the 19th day of November thereafter. The cause, therefore, was duly noticed, and properly placed on the calendar for that general term.

The case became perfect, by the omission of the plaintiff’s attorney to give notice of the settlement thereof, for ten days after he was served with a copy of the proposed amendments. (See Rules 34 and 35.)

The plaintiff did not appear to argue the case or to oppose the defendant’s motion for judgment; and by Rule 39 the defendant was entitled to a judgment against the plaintiff upon the verdict, with costs,

For the foregoing reasons I am of the opinion an order should be made, as of the November general term, 1861, that the defendant have judgment against the plaintiff upon the verdict, with costs.

Decision accordingly.

Present, Balcom, P. J., Campbell and Parker, JJ.