Waffle v. Vanderheyden

New York Court of Chancery

Waffle v. Vanderheyden

8 Paige Ch. 45, 1839 N.Y. LEXIS 286, 1839 N.Y. Misc. LEXIS 111

CourtNew York Court of Chancery

DecidedAugust 6, 1839

StatusPublished

Cited by16 cases

This text of 8 Paige Ch. 45 (Waffle v. Vanderheyden) is published on Counsel Stack Legal Research, covering New York Court of Chancery primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Waffle v. Vanderheyden, 8 Paige Ch. 45, 1839 N.Y. LEXIS 286, 1839 N.Y. Misc. LEXIS 111 (N.Y. 1839).

Pincite

Opinion

The Chancellor.

As the neglect to have the name of the agent entered in the agency book was the fault of the clerk, and not of the complainant’s solicitor, it would have been a matter of course to have retained the injunction,, if the solicitor had shown that the notice of retainer did not come to hand- in season to enable him to serve a copy of the bill within the time required by the rule. There is no pretence of that kind, however, and there probably could not have been in this case. The appellant,, therefore, relied upon mere technical grounds as to the regularity of the proceedings of the defendants’ solicitor ; and if he was wrong as to those grounds, the order of the vice chancellor dissolving the injunction with costs was properly granted.

It is alleged in the affidavit of the complainant’s solicitor that he has never served either the injunction or a subpoena on the defendant Hatch. That, however, was not necessary to enable Hatch to enter his appearance, and to join with the other defendant in an application to dissolve the injunction, which was equally binding upon both, if they actually knew the fact that such an injunction had been granted. And the neglect to serve the subpoena upon one of the defendants' after obtaining an injunction staying the proceedings in a suit commenced by both, might of itself have been a good ground for dissolving the injunction, if unexplained.

I think the defendants’ proceedings were also regular in-sending the notice of retainer by mail. Such a service is expressly authorized by the 14th rule, where the solicitor has no agent residing at the place of service. And the party making the service is not bound to look beyond the agency book for the purpose of ascertaining whether there is an agent at that place. The agent himself should not only file his appointment, but should also see that his name [47]*47is properly entered on the list of agents ; as that is the only record of the appointment to which other solicitors have access.

The decision of the vice chancellor was therefore right; and the order appealed from must be affirmed, with costs.

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The Chancellor.

As the neglect to have the name of the agent entered in the agency book was the fault of the clerk, and not of the complainant’s solicitor, it would have been a matter of course to have retained the injunction,, if the solicitor had shown that the notice of retainer did not come to hand- in season to enable him to serve a copy of the bill within the time required by the rule. There is no pretence of that kind, however, and there probably could not have been in this case. The appellant,, therefore, relied upon mere technical grounds as to the regularity of the proceedings of the defendants’ solicitor ; and if he was wrong as to those grounds, the order of the vice chancellor dissolving the injunction with costs was properly granted.

It is alleged in the affidavit of the complainant’s solicitor that he has never served either the injunction or a subpoena on the defendant Hatch. That, however, was not necessary to enable Hatch to enter his appearance, and to join with the other defendant in an application to dissolve the injunction, which was equally binding upon both, if they actually knew the fact that such an injunction had been granted. And the neglect to serve the subpoena upon one of the defendants' after obtaining an injunction staying the proceedings in a suit commenced by both, might of itself have been a good ground for dissolving the injunction, if unexplained.

I think the defendants’ proceedings were also regular in-sending the notice of retainer by mail. Such a service is expressly authorized by the 14th rule, where the solicitor has no agent residing at the place of service. And the party making the service is not bound to look beyond the agency book for the purpose of ascertaining whether there is an agent at that place. The agent himself should not only file his appointment, but should also see that his name [47]*47is properly entered on the list of agents ; as that is the only record of the appointment to which other solicitors have access.

The decision of the vice chancellor was therefore right; and the order appealed from must be affirmed, with costs.

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Bluebook (online)

8 Paige Ch. 45, 1839 N.Y. LEXIS 286, 1839 N.Y. Misc. LEXIS 111, Counsel Stack Legal Research, https://law.counselstack.com/opinion/waffle-v-vanderheyden-nychanct-1839.

Opinion

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