Stilwell v. Armstrong , 59 N.Y.S. 671 ( 1899 )

MacLean, J.

The plaintiff having recovered judgment, the defendant took and perfected an appeal therefrom and had the -cause placed upon the calendar of.this court for the May term. Upon the call of the calendar, the defendant’s counsel moved ore terms for leave to withdraw the appeal on the ground that the parties had settled their differences. The motion was not entertained because not based upon written proofs and not made upon notice. When the cause was called on the calendar of this (June) term, the defendant moved for leave to withdraw the appeal, without costs, upon a notice of eight days and upon an agreement between the parties, under seal, disposing of and settling their differences and consenting to the discontinuance of the appeal without costs to either party as against the other. In opposition, the attorney of the plaintiff showed by affidavits that he had not been relieved from, or asked to abandon, his representation of the plaintiff, and that he was interested in the action to the extent of one-half of .any recovery by the plaintiff. Under such objection, coupled with substantial interest of the plaintiff’s attorney in the cause of action, and no payment or tender having been made of the costs already accrued, the motion must be denied.

Ho appearance or opposition except as above being offered, the judgment must, upon the motion of the respondent, be affirmed, with costs.

Feeedmait, P. J., and Leveittbitt, J., concur.

Judgment affirmed, with costs to respondent.