Howett v. Merrill

1 N.Y.S. 894, 17 N.Y. St. Rep. 1009, 49 Hun 608, 1888 N.Y. Misc. LEXIS 1635

Opinion

Barnard, P. J.

It is difficult to say what are the facts in this case upon the real point of dispute. It is certain that the plaintiff recovered a judgment of $337.86 damages, and costs, against the defendants on the 24th of May, 1881; that Calvin D. Yan Name was the plaintiff’s attorney; that on the 14th of April, 1882, the plaintiff settled with Isaiah Merrill, one of the defendants, for one-half of the judgment, and gave him a satisfaction from the judgment as to this defendant; that Yan Name was not informed of the settlement until the 6th of January, 1883; that he at once moved to vacate the satisfaction, which was so ordered upon improper service of papers, and the order was revoked on February 13, 1883, and the matter has so remained until this application was made, in November, 1887. The length of time which has elapsed since the revocation of the order is a very strong circumstance against now opening the subject. The worst circumstance is, however, one which affects the question of the attorney’s right to claim at all. The moving pa-, pers contain an affidavit made by plaintiff that, at the time of the settlement, he told the defendant that he had paid Yan Name “all that was due him.” Yan Name swears that nothing was paid. The defendant makes oath that the plaintiff told him that all claims in respect to this litigation had been settled with Yan Name for a note of $100, and some costs. There is also other proof of statements of the plaintiff to the same effect. Upon the whole case, in view of the time which has expired since the satisfaction was given, the order should be affirmed, with costs.

Pratt, J., concurs.