Lederer v. Lederer

New York Supreme Court

Lederer v. Lederer

47 Misc. 471, 95 N.Y.S. 934

DecidedJune 15, 1905

StatusPublished

This text of 47 Misc. 471 (Lederer v. Lederer) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Lederer v. Lederer, 47 Misc. 471, 95 N.Y.S. 934 (N.Y. Super. Ct. 1905).

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Opinion

Blanchard, J.

I have considered the opinion rendered by Mr. Justice Clarke in denying the motion to vacate the order to show cause and concur in the views there expressed. Moreover, I am of the opinion that since the Code of Civil Procedure makes no specific provision as to the method in which the order to show cause shall be served, the usual method of service of papers upon an attorney in an action should prevail. This view seems to be fortified by the terms of section 2273 of the Code, which provides that the order to show cause in contempt proceedings is equivalent to a notice of motion. There can be no question that a notice of motion to the same effect as this order to show cause would have been properly served upon the defendant’s attorney. The affidavit of the defendant’s attorney that he' has no general authority to act for the defendant in this action outside of the appeal from the interlocutory judgment now pending should not be considered. Having been the attorney for the defendant in the action he is such attorney for all the purposes of the action. His authority as such attorney cannot be limited by his client nor by himself. He is either the defendant’s attorney or he is not. If he is not he should apply to the court for leave to withdraw as the defendant’s attorney. Galt v. Provident Sav. Bank, 18 Abb. N. C. 431. The motion tb vacate the order to show cause is denied. Let the motion upon the order to show cause be restored to the calendar for the sixteenth inst. so that it may be disposed of on the merits.

Ordered accordingly.

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Blanchard, J.

I have considered the opinion rendered by Mr. Justice Clarke in denying the motion to vacate the order to show cause and concur in the views there expressed. Moreover, I am of the opinion that since the Code of Civil Procedure makes no specific provision as to the method in which the order to show cause shall be served, the usual method of service of papers upon an attorney in an action should prevail. This view seems to be fortified by the terms of section 2273 of the Code, which provides that the order to show cause in contempt proceedings is equivalent to a notice of motion. There can be no question that a notice of motion to the same effect as this order to show cause would have been properly served upon the defendant’s attorney. The affidavit of the defendant’s attorney that he' has no general authority to act for the defendant in this action outside of the appeal from the interlocutory judgment now pending should not be considered. Having been the attorney for the defendant in the action he is such attorney for all the purposes of the action. His authority as such attorney cannot be limited by his client nor by himself. He is either the defendant’s attorney or he is not. If he is not he should apply to the court for leave to withdraw as the defendant’s attorney. Galt v. Provident Sav. Bank, 18 Abb. N. C. 431. The motion tb vacate the order to show cause is denied. Let the motion upon the order to show cause be restored to the calendar for the sixteenth inst. so that it may be disposed of on the merits.

Ordered accordingly.

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Bluebook (online)

47 Misc. 471, 95 N.Y.S. 934, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lederer-v-lederer-nysupct-1905.

Opinion

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