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Stahl o. Wadsworth.

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therein, but for his presumption directed that he pay personally $10 costs of motion in each action. The law of

his case was thus effectually settled. [21] In Goddard v. Trenbath (24 Hun, 182), the general term, second department, held that a release of

a the cause of action constituted a bar to the further prosecution of the action, and that the attorney must first obtain leave of the court to further prosecute the action

for the enforcement of his lien.

In Murray v. Jibson (22 Hun, 386), the general term, fourth department, reversed an order setting aside a settlement as being in fraud of an attorney's lien, holding that the plaintiff could not be relieved from her executed agreement because her attorneys were prejudiced. That where the attorney is the moving party he should be

the actor. [2] In Tullis v. Bushnell (65 IIow. Pr. 465), the New

York court of common pleas, general term, held that before the attorney can prosecute an action for the enforcement of his lien, after settlement, he should obtain

leave of the court for that purpose. [24] In Smith v. Baum (67 Ilow Pr. 267), the New

York city court held that the settlement is conclusive upon the plaintiff, and, if made before issue joined, the

attorney should obtain leave of the court to proceed. [2] In Coster v. Greenpoint Ferry Co. (supra), the city

court of Brooklyn held that the better practice is for

the attorney to obtain leave of the court to proceed. [28] In La Blanche v. Kirkpatrick (8 N. Y. Civ. Pro.

256), the court held that the attorney should proceed to enforce the lien in his own name, and not in the name

of the plaintiff. [?] A contrary doctrine to the above authorities is

found in Forstman v. Schulting (35 Hun, 504). The general term, first department, held that it was not necessary for the attorney to first obtain leave of the court to prosecute the action, refusing to follow Goddard v. Tren

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Stahl v. Wadsworth.

bath (supra), holding it to be directly in conflict with Wilbur v. Baker (24 Hun, 24), and Pickard v. Yencer (10 Weekly Dig., 271; S. C., 21 Hun, 403) that these cases were entitled to most weight as authority. No mention is made of the other authorities which hold the doctrine as laid down in Goddard v. Trenbath, or to the former

practice. [2] In Wilbur v. Baker there was a fraudulent design

to cheat and defraud the attorney out of his costs, and the court held, upon the authority of the Pickard case, that the attorney had the right to prosecute the case to judgment notwithstanding the settlement. It is difficult to see how the authority cited sustains the doctrine claimed for it. That was an action commenced Novemher, 1878, to recover damages for assault and battery; issue was joined therein, and in May following, the attorneys for the plaintiff notified the defendant that they had a lien upon

the cause of action for their costs and disbursements, and they would not recognize a settlement made without their consent. In September following, the parties settled, and the plaintiff gave to the defendant a release and receipt for the sum of thirty dollars, acknowledged satisfaction in full of his claim and authorized the entry of an order of discontinuance, without costs to either party as against the other. Upon the receipt and stipulation an order of discontinuance was entered. Plaintiff's attorneys had no notice of these proceedings until the circuit after me selclement, at which they noticed the cause for trial and placed the same on the calendar. On making discovery, plaintiff's attorneys, upon affidavits showing the facts as above stated, and also that plaintiff was insolvent, moved for and obtained an order to show cause why said settlement and order of discontinuance should not be set aside. On the hearing, the court granted the motion setting aside the settlement, stipulation and order of discontinuance based thereon. The plaintiff's attorneys thereupon entered judgment for costs. The defendant

Stahl o. Wadsworth.

appealed. The general term held that the settlement was clearly in fraud of the attorney's lien, that they had the right to have it, and the order of discontinuance set aside to enable them to continue the action and recover their costs, but that they were irregular in entering judgments for costs. The order of the court was: "Judgment set aside, and order modified so as to permit the plaintiff's attorneys to proceed with the suit in the name of their client notwithstanding the settlement and stipulation." A very different case is here presented from the one which this is cited to sustain. Here the attorney did apply to the court to have the settlement set aside, and when granted nothing stood in the way of proceeding with the action.

What was a bar to proceeding was here removed, and the action stood, as to the attorney, as originally commenced. Such order was the enabling act authorizing

them to proceed. Consent was obtained from the [2] court authorizing the attorneys to prosecute, and the

general term, in the judgment pronounced, was careful to continue the consent given. It is difficult to conceive of a case where consent is applied for and given, unless this be one. Instead of supporting the doctrine contended for, it is in harmony with the other decisions of the same court upon this subject.

I am convinced, from the authorities cited, and the reason for the rule, that this order should be affirmed, upon both grounds, as herein expressed, with $10 costs and disbursements.

Gebhard o. Squier.

GEBHARD AND ANOTHER, RESPONDENTS, v. SQUIER,

ET AL.,

APPELLANTS.

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SUPERIOR COURT OF BUFFALO, GENERAL TERM, JULY, 1887.

$ 531.

Account Practice on failure to serve copy upon demand-Effect of

such failure.

Section 531 of the Code of Civil Procedure has not changed the practice

as to excluding evidence for failure to serve copy of account as it

existed under the Code of Procedure. Where a party to an action fails to serve a copy of an account, sued upon,

but not set forth in his pleading, the proper practice is for the parties seeking such copy to make application to the court by motion to preclude such party from giving evidence on the trial of his demand. The question should be settled before trial, and it is not error to admit evidence of an account notwithstanding a demand for a copy thereof has been made and disobeyed, where an order excluding evidence has

not been secured. Where, in an action for goods sold and delivered, the defendants demanded

a copy of the plaintiffs' account and they failed to serve the same, and the sale of the goods was not put in issue nor was any question raised on the trial involving that issue, and it appeared that an itemized account of the plaintiffs' demand could not have availed the defendant, -Held, that the plaintiffs' failure to serve a copy of the account

did not require the exclusion of proof thereof. (Decided July 19. 1887.)

Appeal by defendants from judgment in favor of plaint

iff.

The opinion states the facts.

Frank E. Sickles, for defendants appellants.

Baker and Schwartz, for plaintiffs respondents.
Titus, J.—The plaintiffs in their complaint allege that

Gebhard v. Squier.

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the defendants were copartners, and that between July 2, 1885, and August 31, 1885, he sold and delivered to the defendants certain goods, wares and merchandise which were of the agreed price and value of $486.98. The answer is a denial of the copartnership of the defendants, and it set up as matter of defense, that on July 1, 1885, the partnership then existing between the defendants was dissolved, and that the business of said copartnership was continued by the defendant William E. M. Frecknall, and that the plaintiffs had notice of such dissolution, and that the goods, wares and merchandise mentioned in the plaintiffs' complaint were sold and credit given to the defendant Frecknall. The defendant Parker, only, appears to defend. A demand of a bill of particulars of the plaintiffs' account was made, which the plaintiffs neglected to furnish, and when the cause was on trial, the defendants' counsel objected to the plaintiffs giving any proof of the sale of the goods to the defendants, on the ground that no bill of particulars had been furnished him, of the plaintiffs' account ; the court overruled the objection and allowed the plaintiffs to make proof of their claim.

It appears that the only issue tried was the partnership of the defendants at the time the goods were purchased. The jury passed upon that question adversely to the defendants, and gave the plaintiffs a verdict for the amount of their claim. The sale of the goods was not in issue under the pleadings, nor was any question raised on the trial involving that issue. In the light of the facts developed on the trial, it is apparent that an itemized account of the plaintiffs' demand could have availed the defendants nothing, as neither the sale nor the quantity of goods was questioned by them.

The practice as it existed under the old Code has not been changed by section 531 of Code of Civil Procedure (Butler v. Mann, 9 Abb. N. C. 49; Dwight v. Germania Life Ins. Co., 84 N. Y. 493).

Under the old Code, the proper practice, in case a party

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