Pearl v. Robitchek & Taussing

By the Court—Daly, F. J. The question raised in this-case was considered and passed upon in Ackermam, v. Ackerman, (14 Abb. 229), and, although the point was not esséntial to the decision of that case, it was not a new one. It was expressly held by Lord Mansfield, in Welsh v. Hole (1 Doug. 238), that a defendant may pay the whole debt and cost to the plaintiff, without the privity of his attorney, where there has. been no notice from the attorney not to do so, express or implied. That was a case in which the payment was made, as in this case, after a judgment was entered up for the damages and costs, and the rule for the defendant to show cause, why he should not pay to the plaintiff’s attorney his bill of costs, was discharged. It was also held in Chapman v. Haw (1 Taunt. 341), that, where there was no fraudulent conspiracy to cheat the attorney, the plaintiff had a right to settle the suit with the defendant, without consulting his attorney, and take upon him 140 self the payment of the costs of his attorney; and the attorney, after being notified of the settlement of the suit by the plaintiff, having issued an execution, the court set the execution aside. It has frequently been decided by this court—and, before the Code, was always understood to be the law in this State—that a defendant might settle with the plaintiff, either before or after judgment, without the intervention of the plaintiff’s attorney, unless he had information of the attorney’s lien, or was notified by the attorney not to pay unless his claim for his costs was satisfied (Graham’s Practice, 61, 2d ed.; TenBroeck v. De Witt, 10 Wend. 617; St. John v. Diefendorf, 12 Id. 261), and there is nothing in the Code to change the law in this respect. Where it is apparent that the suit has been collusively settled, with the manifest design, both on the part of the plaintiff and the defendant, to evade or get rid of the attorney’s costs, the court will interfere to prevent the defendant from getting rid of the judgment (Mitchell v. Oldfield, 4 T. R. 123, 124). Such may have been the intention of the plaintiff in this case, but there is not enough to warrant the legal conclusion that that was also the intent of the defendants, or which would entitle us to say that the settlement, on his part, was not made in good faith. The order appealed from should therefore be affirmed.