Wright v. Smith & Bull , 13 Barb. 414 ( 1851 )

By the Court, Johnson, J.

This cause was tried before the court without a jury. It appears from the decision of the judge, that all the allegations in the plaintiff’s complaint were proved or admitted. And all the facts stated in the defendant’s answer, except the allegation that Doughty was not overseer of the poor, and the allegation that no money was received of Jennings upon the judgment against him. It was also admitted that the plaintiff was employed to prosecute Jennings, named in the complaint, by the obligors in the bond therein mentioned, or one of them. The judge decided that upon this proof, as matter of law, the plaintiff was not entitled to recover. Ho reasons for the decision are given. I confess I am unable to perceive why the plaintiff is not in law entitled to recover his costs of these defendants. He was the attorney in the action, and prosecuted the suit to judgment; and these, defendants were not only nominally plaintiffs, but had control of the recovery.

Conceding that neither these defendants nor their predecessors in office, actually retained the plaintiff to prosecute that suit against Jennings, yet it was in fact and in law the suit of the overseers of the poor for the time being. Ho other person had any interest in it-or control over it. The persons who gave the bond had no interest in the suit. They made themselves liable for the costs in case no judgment was recovered; but they had no control over the suit, and could do nothing except to attend to its prosecution. The law made them the agents of the overseers, to institute the suit and carry it on for them. But they had no title to the judgment when recovered, and could not receive the proceeds, or direct, to any extent, as to the manner of their appropriation. The statute directs as to.this. “If prosecuted to effect, the penalty shall' be applied as now provided by law.” (Sess. Laws of 1845, ch. 300, § 7.) The defendants took the penalty recovered in their official capacity, to disburse as the law directs. In case of such a suit prosecuted to effect, the obligors in the bond are not liable for costs, to any one ; not even the attorneys. They could only be called upon in case of failure to recover. And then only by reason of their undertaking, and not as parties to the action. I think it follows, therefore, as a clear deduction, that the plaintiff was the attorney of the overseers, retained for them by authority of the statute. Their liability to him, however, for his fees, was, in the first instance, only conditional, and depended entirely upon a recovery being had. But upon recovery, they stood in the same relation as upon an original retainer personally. In that event, the attorney could look to no other person; and the statute, I apprehend, did not contemplate that he should render his services for the public gratuitously.- His legal fees in such case are in the judgment, which the overseers control; but they do not belong to the town. It is the penalty, only, which is applied as provided by law. (See act above cited, § 7,) It is not contended that the stipulation of Bennett and Doughty, in whose names the suit was commenced, and who were then overseers, given after the expiration of their term of office, and after others had been elected in their places, agreeing to discontinue the suit, could have the effect to discontinue. And clearly it could not. They had then no more control over the action than any other strangers. The new overseers had become parties in their stead, by virtue of their office.

The judgment against the defendant, Jennings, was recovered on the 18th of May, 1848. It is contended by the defendants’ counsel that the repeal of the act of 1845, on the 7th of May, 1847, worked a total discontinuance of the suit, and a discharge of the defendant therein from his liability; and that the judgment rendered afterwards in that suit was null and void. It is impossible to see how these consequences follow from the repeal of the act of 1845. The action was to recover the penalties given by the revised statutes for selling ardent spirits without a license from the hoard of excise. Neither the act of 1845, nor the repealing act of 1847, repealed or in any manner affected these provisions. The prohibitions and penalties prescribed by the revised statutes were still in force, notwithstanding those acts. The cases cited by the defendants’ counsel, are where the repeal of the act took away the penalties, or the right upon which the action was founded. This is no such case. Here the statute prescribing the penalty, and authorizing the prosecution and recovery, was still in force. It was in fact the foundation of the cause of action. The act of 1845, prescribed under what circumstances boards of excise should be authorized to grant licenses; and upon what conditions others might commence and prosecute actions for penalties, for and in the name of the overseers, where they refused to dischargé the duties imposed upon them by law, appertaining to their office. The selling without license, however, was still prohibited. But independent of this, here was a judgment in a suit regularly commenced, in which issue had been joined, and which was final and conclusive between the parties, while it remained unreversed. The suit was in fact prosecuted to effect: and I am clearly of opinion that the overseers for the time being, who were the defendants here, are liable to the plaintiff for his fees as attorney, in this aspect of the case, alone.

But the case shows that after the judgment was obtained, on the 24th of May, 1848, satisfaction of the same was duly executed by the defendants, and the clerk authorized to cancel the same of record. This acknowledgment of satisfaction is in the usual form, and signed by the defendants, overseers of the poor of Venice, for the year 1848, and also by Doughty and Bennett, the overseers of the preceding year, when the suit was commenced. It was duly acknowledged and filed in the clerk’s office, and the judgment satisfied of record. The defendants, in their answer, admit the acknowledgment of satisfaction of the judgment by them, but they aver that no money was paid, and none agreed to be paid by the defendant, for or on account of such acknowledgment. Upon this averment in the answer issue is taken by the reply. The judge certifies that upon, this issue no proof was given by either party, except the proof of the execution and acknowledgment of the satisfaction piece. But this, in the absence of all other evidence, was conclusive proof that the defendants had received the amount of the judgment, in money or its equivalent. (Packard v. Hill, 7 Cowen, 445. Stanton v. Thomas, 24 Wend. 71.) As the case stood, therefore, upon the proof, it was clearly shown that the defendants had received in money the full amount of the debt and costs.

But the plaintiff’s counsel contends that if there is any liability arising out of the execution and acknowledgment of the satisfaction piece, Doughty and Bennett should have been joined as defendants, as they united with Smith and Bull in. executing the satisfaction piece. But the law determines to whom the money, when received, belonged; and in a case like this, I apprehend the law would presume that the money was received by those entitled to it; and that the others merely united in the acknowledgment to satisfy the record. But in any event, if the defendants, who were the only persons authorized by law to receive the money, consented to let others, not entitled, receive any portion of it, they would not, by that act, relieve themselves from their liability, either to the town, or to the attorney. I think it will hardly lie with them to say that they voluntarily shared in the money with others who had no right to it. On this ground, the plaintiff’s right of recovery seems to me complete. The judgment of the special term must therefore be reversed, and a new trial ordered, with costs to abide the event.

[Monroe General Term, December 2, 1851.

Welles, Selden and Johnson, Justices.]