Howard v. Howard

11 How. Pr. 80

• Court: New York Supreme Court
• Decided: April 15, 1855
• Status: Published

Opinion

Hand, Justice.

I think the Code has not repealed the Revised Statutes, with regard to the production of the authority of the attorney to bring an action of ejectment. It contains nothing inconsistent with the precautions heretofore required •, and, indeed, has no reference to the subject.

On the other point, a general agent to see to the property and business of his principal, and to take and hold possession, and manage and carry on a certain lo.t, is not authorized to employ an attorney to bring an ejectment.

. The statute requires a written request to commence the suit, either by the plaintiff or his agent; or a written recognition of the authority of the attorney to do so. (2 R. S. 306.) It does not, at least in express terms, require that the authority of the. agent shall also be in writing; but if that is not requisite, he should have authority in fact. It has been decided that a solicitor must have a special authority to commence a suit. (Lord agt. Kellett, 2 My. & K. 1. And see Rogers agt. Cruger, 7 Johns. R. 557; Wilson agt. Wilson, 1 J. &. 437; Wright agt. Castle, 3 Meriv. 12; 1 Dan. Pr. 352; 2 Chit. Gen. Pr. 19; 3 id. 116.) Unless required by statute, such authority need not be in writing, though that is the safer practice.

But the retainer in this case was not sufficient, nor sufficiently proved. The power to do an act, comprises a power to do all such subordinate acts- as are usually incident to, or necessary to effectuate the principal act. (Pal. on Agency, by Dunl., 209.) But I cannot think an agency to see to property and business, with direction to take possession of a lot of land and work it, implies an authority to bring an action of ejectment. The plaintiffs’ attorneys have not complied with the statute.

The agent of the plaintiff, however, swears that he has twice written for an authority, and for a recognition of the authority of the attorney to bring the suit, and that it was commenced in good faith, under the belief that he had an authority to do so; and he believes he will very soon receive a confirmation of his acts. The matter may be suspended a few days for that purpose.

At Essex Special Term, in March, 1855, the defendant having again moved the matter, the counsel for the plaintiffs produced an instrument, or writing, signed by one of the plaintiffs, for himself and his co-plaintiff, but dated after these proceedings were commenced, recognizing the authority of the attorneys to commence the suit, and requesting them to continue it. The same plaintiff also made an affidavit, wherein he stated that his co-plaintiff is still in California; that the plaintiffs are joint owners of the land in controversy; that both went to California in 1852; and that when the deponent left California, his co-plaintiff directed him to do whatever was necessary in regard to the prosecution of this action; and authorized him, as agent, to give any necessary authority therefor.

R. S. Hale, for plaintiffs.

B. Pond, for defendant.

The judge held the recognition of the authority sufficient.