HARRY v. HILTON

HARRY v. HILTON. N. Y. Common Pleas; General Term, November, 1882. Action fob Stenoerapheb’s Fees.—Attorney and Client.— Client’s Liability upon Attorney’s Employment. A client is responsible for stenographer’s fees in a case where the stenographer is employed by his attorneys to take the minutes of proceedings before an auditor to whom a surrogate has referred an executor’s account. In such case it is immaterial whether the party sought to be charged instituted the proceeding or not. Appeal from judgment- in favor of plaintiff. Charles W. Seymour, for appellant. Frank A. Slade, for respondent. [MAJORITY — Van Brunt, J.] Van Brunt, J. The question involved in this appeal is, whether a client is responsible for stenographer’s fees in a case where such stenographer is employed by attorneys to take the minutes of the proceedings before an auditor, to whom the surrogate has referred an executor’s account. The counsel for the respondent relies upon the decisions of the courts which held that when an attorney orders notes of a case from a stenographer, the client is presumably liable and not the attorney, because the relation of principal and agent exists. These cases introduce no new rule in the law regarding contracts, but simply enforce an old one. Their significance, however, lies in the fact that in the decision of these cases, the courts assume that such action 'upon the part of the attorney is presumably within the scope of the authority conferred upon him, when he is retained by his client, and that the attorney has the right to bind his client for any service which may be necessary and proper, not only for the preparation of the case for trial, but for the convenient conduct of such trial, and the proceedings thereafter taken (Covel v. Hart, 14 Hun, 254). In the case of First National Bank v. Tomajo (77 N. Y. 476) the right of the attorney to make agreements which enhance the burden and costs of litigation is directly recognized. We are of the opinion, therefore, that the attorney does bind a client for the payment of stenographer’s fees where he is employed during the progress of a proceeding under a suggestion to which he accedes. The objection raised to the ruling of the court in excluding the question as to whether the defendant Hilton instituted the proceedings or filed objections to the account is not well taken. The fact that Hilton was attending such accounting by his counsel was conceded. He was attending such accounting by his attorney as a party in interest; he therefore became a party to the proceeding, and it was immaterial whether he instituted it or not. The judgment should be affirmed. Present, Van Brunt, P. J., J. F. Daly and Van Hoesen, JJ. As a general rule, an attorney will incur no personal liability by simply requesting the performance by a stenographer of services rendered necessary by the progress of the case, unless he expressly binds himself. Sup’m Ct., 1878, Bonynge v. Waterbury, 12 Hun, 535. There must be a special obligation to that effect; the rule being that when a person contracts as agent of another and the agency is known, the principal alone is responsible. Ct. of App., 1880, Bonynge v. Field, 81 N. Y. 159, affirming 44 Super. Ct. [J. & S.] 581. And counsel are not liable to stenographers for copies of evidence given on the trial, unless they specially bind themselves. Sup’m. Ct., 1878, Sheridan v. Genet, 12 Hun, 660, and see 22 Moak Eng. 505, note, comparing and citing other cases. As to attorney’s power to bind client see, also, Mark v. City of Buffalo, 87 N. Y. 184; and Ducker v. Rapp, 67 N. Y. 464, reversing in part, 41 Super. Ct. (J. & S.) 235.