McBratney v. Rome, Watertown & Ogdensburg Railroad

Andrews, Ch. J. The order of the General Term from which this appeal is taken, reversed an order of the Special Term, setting aside an order discontinuing the action without costs to either party, entered as of course exporte, and without the special direction of the court, upon filing a release of the cause of action, and of the costs therein, signed by the plaintiff in person, to which was appended a stipulation on her part, discontinuing the action, and consenting to the entry of an order of discontinuance, on filing the stipulation. The Special Term set aside the order, on the ground that the settlement of the *470 action by the parties was made with the design of preventing the plaintiff’s attorney from obtaining his costs. The 'order of. reversal should, we think, be affirmed. The power of the Supreme Court to protect the attorney of a party to an action, against a collusive settlement in fraud of his rights, is well settled. (Coughlin v. The N. Y. C. & H. R. R. R. Co., 71 N. Y. 443, and cases cited.) But the right of the-attorney to have the discontinuance set aside for his protection is not involved in this appeal: The appellant is the party to the action, who signed the - stipulation on which the order of discontinuance was entered, and unless she is entitled to have it set aside on her own account, she has no right to that relief, on account of the attorney. It is quite clear that she cannot, be released from the order on any suggestion of fraud in procuring the stipulation. There is no competent evidence that she was deceived, or that any fraud was practiced upon her, or that" she did not understand the effect of the settlement and stipulation. If the statements of the attorney, on information and belief in the moving affidavits, give color to the claim that the plaintiff was deceived, they are met by proof of the same character in the opposing affidavits, and the fact cannot be reviewed by this court. The claim that the order was irregularly entered, in that it was entered ex parte, as of course, without application to and the special direction of the court, is decided adversely to the appellants, in Averill v. Patterson (10 N. Y. 500). It is not necessary to determine the point made, that the order was irregular, because the plaintiff having appeared by attorney, the latter only was authorized to sign a stipulation for discontinuance. The plaintiff cannot be heard to make this objection. The stipulation executed by her expressly authorized the entry of an order of discontinuance thereon, and she cannot question the regularity of the proceeding. Order affirmed, but without costs. All concur. Order affirmed.