Margaret Kelly, Respondent, v. New York City Railway Company, Appellant

Margaret Kelly, Respondent, v. New York City Railway Company, Appellant. Second Department, November 22, 1907. Attorney and client — discontinuance of action — retainer of attorney doubtful — costs of appeal. While the court should preserve the lien of an attorney and prevent him from being cheated by collusive and fraudulent settlements; a discontinuance asked by both parties should not be denied where it is doubtful- that the plaintiff's attorney opposing the motion was ever authorized to bring action. On the reversal of ah order denying such discontinuance, the plaintiff’s attorney-being the real respondent, should be charged with the costs and disbursements of the appeal. Appeal by the defendant, the Rew York City Railway Company, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of King's on the 25th day of January, 1907, denying its motion for the discontinuance of the above-entitled action. Bayard H. Ames [James L. Quackenbush with him on the brief], for the appellant. Joseph Gans, for the respondent. [MAJORITY — Miller, J.:] Miller, J.: The defendant appeals from an order denying its application for the discontinuance of the action in which the plaintiff joined. The respondent claims that the appeal should be dismissed for the reason that, the order appealed from was ma,de on January twenty-fifth, and that after the notice of appeal was served said order was amended by an order made on March eleventh so as to contain certain recitals omitted from the original order. The order of March eleventh is printed in the record, and by its terms the order as resettled and amended remains of the date as originally entered. Moreover, no motion to dismiss was made; had there been, the defect, if defect there be, might have been supplied pursuant to section 1303 of the Code of Civil Rrocedure. The respondent Avas apprised of the order sought to be reviewed. (Lindon v. Beach, 6 Hun, 200.) The motion was opposed by the attorney of record for the plaintiff, and the only question of fact'raised, was whether said attorney was ever' authorized to bring the action. The plaintiff asserts that she never retained said, attorney or authorized the commencement of the action. Said attorney says that he would not have brought the action had lie not been informed by his clerk that he was' authorized so to do. It appears by his affidavit that he never had any communication with his client except to write her a letter , requesting her to examine and correct a proposed complaint "which he inclosed, and to sign and return the same tq him when corrected, but he concedes that the plaintiff never replied to his letter. Said clerk says that he was present when the accident occurred (this is an accident case); that the plaintiff then gave him her name and address and requested him to call upon her; that he did so, and requested her to sign a writing authorizing said attorney to repre- . sent her .and to commence an action, but that while she authorized him to retain said attorney she refused to sign any writing to that effect. The accident occurred on the lYth day of December, 1906, and on the eighteenth said attorney served a summons ás he says “ in order that the plaintiff should not be unduly delayed in the enforcement of her claim in case the defendant should decline to settle it.” Parties should, not be vexed by lawsuits instituted.without authority, but should receive summary relief therefrom. They have the fight to settle their differences without suit or after suit brought, and they will be ,aided and not embarrassed in doing so. While the courts will go far to preserve the lien of attorneys and to prevent them from being cheated oi\t of their fees by collusive and fraudulent settlements, parties will' not be compelled to litigate against their will. The parties to this action had a right to discontinue it, and the only question before the court related to the measures to be taken for the protection and enforcement of the attorney’s lien. Obviously the existence of any such lien depended upon the attorney’s authority to begin the suit, and an attorney asking for that protection should be in-a position to satisfy the court of his authority. • Without passing upon the good faith of the attorney, we are not satisfied from the facts disclosed by the record that the plaintiff ever authorized the commencement of the action, and we think the application of both parties for an order discontinuing the action should have been granted. As the attorney is the real respondent, he should pay the costs and disbursements of this appeal. Woodward, Jenks, Hooker and Rich, <TJ., concurred. Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, payable by the attorney for the respondent.