Jones v. Merit Truck Renting Corp.

17 A.D.2d 779, 232 N.Y.S.2d 519, 1962 N.Y. App. Div. LEXIS 7780

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 9, 1962
• Status: Published

Opinions

Appeal from an order of the Supreme Court at Special Term, entered May 1, 1962 in New York County, which granted a motion by plaintiff for an order restoring the ease to the Ready Day Calendar after it had been discontinued.

Memorandum by the Court. Order, entered on May 1, 1962, granting plaintiff’s motion to restore the ease to the Ready Day Calendar affirmed, without costs. The question posed is whether trial counsel — or indeed even an attorney of record — may discontinue an action “with prejudice” without first having obtained the authority of his client. We might mention here that the testimony given before the Referee to the effect that there was no consent to such discontinuance was uncontroverted. While it is true that an attorney in charge of the trial of a case has a right to discontinue, he may not discontinue in such manner as would “ conclude the client in relation to the subject in litigation without his consent ” (Barrett v. Third Ave. R. R. Co., 45 N. Y. 628, 635). There is no question but that an attorney — whether it be an attorney of record or trial counsel — may not settle a case without the authority of his client (Barrett v. Third Ave. R. R. Co., supra). If an attorney has no right to settle a ease without his client’s authority, a fortiori, he should have no right to discontinue the cause of action in such a manner as would conclude his client’s rights. It is quite true that the defendant’s counsel was put at a disadvantage because had the court not granted the request of plaintiff’s counsel to discontinue “ with prejudice ”, the attorney for the defendant could have pressed for a dismissal. However, counsel for the defendant could have resisted the motion as made unless there was a showing of authority. If upon such objection the motion were denied he could then have

asked for a dismissal, but such dismissal would not be on the merits (Civ. Prac. Act, § 482; Weisinger v. Berfond, 9 N Y 2d 742; Greenberg v. De Bart, 4 N Y 2d 511; see, for effect of such discontinuance on operation of Statute of Limitations, Civ. Prac. Act, § 23). Accordingly, the stipulation of discontinuance must be disregarded. The relief asked for by the plaintiff was to restore the case to the calendar. Of course, that motion should only have been granted upon a proper showing of merit. While it is true that the affidavit of merits leaves much to be desired, it still sets forth sufficient to justify restoration. The plaintiff’s position is that the accident was caused by defective brakes. Despite the fact that he might have some difficulty in the proof of the ease, that in and of itself does not render insufficient his showing of merit. The driver of the truck made inconsistent statements as to the cause of the accident. One of these statements, if accepted, could support plaintiff’s claim. The fact that there were inconsistent statements made does not render insufficient the showing of merit.