Mckenzie v. Rhodes , 13 Abb. Pr. 337 ( 1861 )

By the Court.^*— Clerke, P. J.

—We think the order of discontinuance in this case, entered on the plaintiff’s consent, without the knowledge of the defendant’s counsel, ought not to be sustained. In the case of a married woman, the court is called upon to protect her and her counsel and attorney from such consent.

In this case, however, the attorney, before' the settlement was made, and again after he had notice of the settlement, wrote to his client his approval of the settlement and his willingness to waive his claim for all costs, except the disbursements and counsel-fees for which he had become responsible.- We-think he cannot now be allowed to withdraw from that consent.

The order of discontinuance must be vacated- and set aside, unless the plaintiff, within ten days, serves notice on the defendant’s attorney, consenting to pay disbursements and counsel-fees, for-which defendant’s attorney is liable, or which he has paid; and if the amount is not agreed on, reference is ordered to Nathaniel Jarvis, Jr., Esq., to compute the amount so to be paid.

The other orders appealed from must fallow this same order.

* Present, Clerke, P. J., Ingraham and Leonard, JJ.