Bogardus a. Livingston. to make no entry of a purchase upon credit, and of a subsequent sale, in a transaction involving an amount of over $23,000, in the conduct and management of so large a business as that conducted by the defendant. That the defendant so regarded it is evident from his declaring to the plaintiff's agent, more than twenty days after the sale, that the transaction was entered in his books; whereas, now, he swears in his affidavit that it was not his business custom to make any entry of such a transaction until he knew whether the bills would be accepted or not. His present explanation of the omission, therefore, is not consistent with his previous declaration, and the inference that it warrants must be taken against him. It was also in evidence that the bills sold by the plaintiff were of the first class, and that the defendant could not have sold them here again at a profit. If the facts were otherwise, it was an easy matter for the defendant to disclose the name of the person or firm to whom he sold them, and the amount for which they were sold, or, if he wished to put the matter beyond contradiction, to get the affidavit of the purchaser as to the fact. He has not thought proper to do this, or to avail himself of the privilege granted him by the judge, of renewing his motion upon further affidavits, if he could explain or avert the conclusion that must arise upon the facts as they are now presented, but has appealed from the judge's decision. That decision was in my judgment correct, and the order below should be affirmed. BOGARDUS a. LIVINGSTON. New York Common Pleas; General Term, December, 1858. ATTORNEY AND CLIENT.-RETAINER.-SERVICE.-MOTION TO VACATE JUDGMENT. An attorney, being employed by his client in the prosecution and defence of many suits, gave a voluntary appearance for him in a new suit brought against him upon a subject connected with suits then pending. About the time of Bogardus a. Livingston. serving this appearance, the attorney told him that he had appeared for him, and he expressed no dissent. No further steps were taken in the action for the space of five years, when the plaintiff served his complaint upon the attorney, who, deeming his authority to have lapsed, delivered it to the defendant. The defendant took no notice of the proceedings until six months after judgment entered against him on failure to answer, when, being disturbed by supple mentary proceedings, he moved to set aside the summons and all subsequent proceedings. Held, That the motion was properly denied. 1. The attorney's appearance was not unauthorized, but under such facts he might well assume a retainer. 2. Such appearance being equivalent to a personal service, the judgment was regular. 3. That the defendant's delay in moving was such as to preclude the setting aside the judgment with leave to defend, there being no satisfactory excuse for the delay, and a merely formal affidavit of merits. Motion to set aside summons and all subsequent proceedings. The facts are stated in the opinion. BY THE COURT.*-DALY, J.-Where an attorney has appeared for a defendant without authority, the court will not, unless the attorney is irresponsible, set aside the judgment, but will leave the defendant to his action against the attorney. If the defendant, however, swear to merits, the court will allow him to come in and defend, suffering the judgment to stand that the plaintiff's lien, acquired by the judgment, may be preserved. (Denton a. Noyes, 6 Johns., 296.) But this is not a case of an appearance by an attorney without authority. Mount, the attorney, swears to a state of facts from which he might well assume that he had authority to appear for the defendant. When he served the notice of retainer in this suit, he was, and had been for a long time prior, acting as the attorney and counsel for the defendant in the prosecution and defence of suits, one of which, growing out of the transaction which led to the giving of the note in this suit, was then pending. He swears, to the best of his belief, that, at or about the time when he served the notice of retainer, he informed the defendant that he had appeared for him, and the defendant does not in his affidavit deny that he had been so informed. Assuming it, then, to be the fact that he was so Present, DALY, F. J., and BRADY and HILTON, JJ. Bogardus a Livingston. informed, his expressing no dissent was a recognition of the propriety of the attorney's act, and of his authority to appear for him. This took place in the year 1852. Five years after, the plaintiff's served their complaint; and Mount, considering that his authority had, as he expresses it, "ceased by non user, or become extinct by age," sent the complaint to the defendant at or about the day when he received it, the receipt of which is not denied by the defendant. This was on the 24th of September, 1857. The defendant took no steps to defend, but suffered the plaintiff to go on and enter up judgment, which he did on the 28th of October following; and it was not until after April, 1858, when an order was made for his examination supple mentary to execution, that the defendant took any notice of the -plaintiff's proceedings, when he made the present motion to set aside the summons and all subsequent proceedings,-setting forth in his affidavit that the summons had not been served upon him, and that he had not authorized any attorney of this court to appear for him, and that he had a good defence to the action. Under the Code, a voluntary appearance by a defendant is equivalent to the personal service of a summons, which was the case here, the defendant having appeared through his attorney, Mount, who, as before suggested, apprised him that he had appeared for him, and whose authority to appear was recognized by the defendant's expressing no dissent. The judgment, therefore, and all proceedings founded upon it, was regular, and there was no ground for setting it aside. The only remaining question is, whether the defendant was entitled to come in and defend upon the merits. I think that, in a case like this, where the defendant suffered six months to elapse-after he was apprised, by the service of the complaint, that the plaintiff was proceeding to judgment-without taking any steps to defend, but knowingly suffered the plaintiff to go on to judgment, to ssue execution, and institute proceedings supplementary to execution, is one that does not commend itself to the favor of the court. The defendant has given no satisfactory excuse for the delay; and the rule is well settled, that a defendant who asks for such relief must apply with due diligence. (Payne a. The People, 6 Johns., 130; Beekman a. Franker, 3 Cai., 95; Johnson a. Clark, 6 Wend., 517; Graham's Practice, 2 ed., 788.) Stilwell a. Otis. We should, at least, be satisfied that we will do injustice if the relief is not granted; and something more is necessary to satisfy us of that than putting in a formal affidavit of merits. The order appealed from should be affirmed. STILWELL a. OTIS. New York Common Pleas; General Term, December, 1858. ATTORNEY'S COMPENSATION.-STATUTE OF FRAUDS. An assignee, for benefit of creditors, was requested by the preferred creditors to transfer the assigned property to them in payment of the preferred debts; and the attorney who drew the assignment objecting that there would be nothing left wherewith to pay his charges, the creditors promised to pay them, but without ascertaining the amount, and the transfer was thereupon consummated. Held, that the promise was an original undertaking, and not void by the statute of frauds, because not in writing. The creditors who made it were liable to pay a reasonable bill to the attorney; and their liability was not at all affected by the liability of the assignee for the same debt. Appeal from a judgment. The facts are stated in the opinion. BY THE COURT.*-HILTON, J.-The plaintiffs are practising lawyers, and bring this action to recover the value of their services in drawing an assignment, for the benefit of creditors, executed by James Hammill to John Hammill, and in which the defendants were preferred for the amount owing them by the assignor. It appears, that after the assignment had been executed and delivered, the defendants proposed to the assignee to transfer all the assigned property to them, in payment of their preferred debt. This offer was made in the presence of the plaintiffs, who acted as counsel for the assignee; and it was objected to, * Present, DALY, F. J., and BRADY and HILTON, JJ. Stilwell a. Otis. on the ground that its acceptance would leave no property or funds in the assignee's hands wherewith to pay the plaintiffs' charges for drawing the assignment, &c. The defendants then agreed to pay such charges, and the agreement was afterwards consummated by the assignee delivering to them all the assigned property. Apart from the plaintiffs' evidence on the trial, these facts appear from the testimony of the defendant P. M. Otis, who, after detailing the several interviews which led to this agreement, adds: "I said we would pay the costs of drawing the papers. This was brought about by Mr. Swain. He asked who would pay the expenses. The assignee said he would have nothing to pay with. I supposed it was the best way to assume the thing, thinking it would only be $20 or $25. The bill of sale was executed, I think, the following day." And again: "When Mr. Swain spoke of the payment of the expenses of the assignment, I did not ask him the amount of his bill. I supposed we would have to pay a reasonable bill." The jury, by their verdict, found that $50 was a reasonable charge for the services of the plaintiffs, and for that amount, with costs, judgment was rendered. It is quite obvious that the agreement of the defendants to pay this debt was not such as is required by the statute of frauds to be in writing. It was an original undertaking on their part, in consideration of the assignee transferring to them all the assigned property, that they would pay the plaintiffs' charges for drawing the assignment. It was a condition of the transfer that they should pay this debt; and the liability of the assignee for the same debt does not at all affect the character or extent of the defendants' obligation. (Leonard a. Vredenburgh, 8 Johns., 29; Skelton a. Brewster, Ib., 376; Mather a. Perry, 2 Denio, 162; Barker a. Bucklin, Ib., 45; Del. & Hudson Canal Co. a. Westchester Co. Bank, 4 lb., 97; Mercien a. Andrus, 10 Wend., 461; Ellwood a. Monk, 5 1b., 235; Blunt a. Boyd, 3 Barb., S. C., 211; Cailleux a. Hall, 1 E. D. Smith, 5.) Judgment affirmed. |