Lyons v. Cahill

20 Abb. N. Cas. 42

• Court: The Superior Court of New York City
• Decided: November 15, 1887
• Status: Published

Opinion

O’Gorman, J.

[After disposing of a question as to the amount recoverable, defendant having proved some credits.]—Whether plaintiff is entitled to recover this amount from the defendant depends on the determination of the question whether the sureties, the survivor of whom is the present defendant, were relieved of responsibility on the appeal bond executed by them, because of the issue of the execution against the judgment debtor in the original action notwithstanding the stay of proceedings consequent on the filing of the bond.

There is no evidence that the plaintiff directed, authorized or sanctioned the act of the attorney who issued the execution. He had been the attorney acting for the plaintiff in the action, but his authority, strictly speaking, terminated on the entry of the judgment (Ward v. Sands, 10 Abb. N. C. 60, 62

*); and although in many cases the regular and lawful issue of execution on the judgment might be presumed to be authorized by the client, no such presumption could attach to the issue of execution not only without authority but in direct violation of a positive prohibition. of law, whereby such proceeding on his part was stayed. This act was the act of the attorney, for which he alone was responsible, and the plaintiff is not estopped or deprived of any right to bring this action. The plaintiff should have judgment against the defendant for $276.74, with costs.

Judgment accordingly.

See, as to the authority of an attorney, and the effect of service of papers by him or upon him, after judgment, 1 Abb. New Pract, pp. 409-416.