Kargman v. Brooklyn & Queens Transit Corp.

263 A.D. 720, 30 N.Y.S.2d 650, 1941 N.Y. App. Div. LEXIS 4706

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 3, 1941
• Status: Published

Opinion

In an action by Samuel Kargman and Valentine L. Shannon to recover damages for personal injuries and by Dora Kargman for property damage, plaintiffs appeal from an order denying their motion for an order (a) vacating and setting aside a settlement of their respective claims, and (b) restoring the case to the calendar for trial. Order reversed on the law, with ten dollars costs and disbursements, and motion granted, without costs, to the extent of directing that the action be restored to the trial calendar without loss of position. Here there was at most an accord but no satisfaction, and hence no agreement of settlement. (Reilly v. Barrett, 220 N. Y. 170, 172, 173; Larscy v. Hogan & Sons, 239 id. 298, 301, 302.) Therefore, there is no occasion to vacate such an agreement. Further, the former attorney for plaintiffs was not authorized by his clients to settle the causes of action. Without such authority the attorney had no power to enter into the stipulation to settle the causes, which stipulation was a nullity. (Bruder v. Schwartz, 260 App. Div. 1048; Sherman & Sons Co. v. Princess Shirt Waist Mfg. Co., 213 id. 140; Countryman v. Breen, 241 id. 392.) Lazansky, P. J., Carswell, Adel, Taylor and Close, JJ., concur.