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Platt agt. McMurray et al.

Assuming this to be true, still we are unable to perceive that any injury was inflicted upon the accused by the supposed error. Both counsel had stated to the jury the punishment which might result from a conviction, and it is not a legitimate conclusion that the jury would give any less consideration to the case under these circumstances than if they had been advised that the accused was on trial for a felony.

There was no error on the trial, and the conviction and judg ment should be affirmed.

All concur except TRACY, dissenting, and RAPALLO, not voting.

SUPREME COURT.

JOHN H. PLATT, as assignee in bankruptcy of the Stuyvesant Bank, agt. EDWIN D. MCMURRAY et al.

Parties - Change of — not necessary for the transferee of an interest to make application for his substitution as a party to the action· · Assignee in bankruptcy of a bank may prosecute action begun previous to his appointment by the bank, in its name, without formal order to that effect.

The Stuyvesant Bank, in 1870, began a suit against defendant, and, after a reference ordered, a receiver was appointed in proceedings for a dissolution of the bank. Subsequently, in bankruptcy proceedings, the present plaintiff, in 1872, was appointed the bank's assignee. The original suit, after long interruption, was prosecuted before the referee, against defendant's objection, without formal substitution of either receiver or assignee as plaintiff, though the attorneys who commenced it were authorized to continue it on behalf of both. After judgment for plaintiff, in 1879, this application was made by supplemental complaint to substitute the assignee as plaintiff:

Held, That the assignee having lawfully succeeded to the rights and interests of the bank, had a right to prosecute the action in its name without a formal order to that effect, and that his subsequent application for substitution was properly made.

Special Term, April, 1882.

Platt agt. McMurray et al.

S. K. & F. B. Wightman, for plaintiff.

Alvin Burt, for defendants.

LARREMORE, J.-This action was originally commenced in the name of the Stuyvesant Bank as plaintiff, and after issue joined therein, a reference was ordered November 14, 1870 (upon mutual consent), to hear and determine the same.

On November 12, 1871, a suit was brought by the attorneygeneral for a dissolution of said bank, and a decree to that effect made December 29, 1871, by which the previous appointment of O. II. P. Archer as receiver of such corporation was made permanent. On December 23, 1871, a petition in bankruptcy was filed against the bank, and by a final decree in such proceedings, dated January 6, 1872, it was declared a bankrupt, and John H. Platt (the plaintiff herein) was appointed assignee therein March 22, 1872. He brought suit against Archer to recover the property and assets of the bankrupt, which were finally adjudged to have been vested in him as such assignee on March 22, 1872.

The original suit, after a long interruption, was prosecuted before the referee against defendant's objection without any formal substitution of either Archer or Platt as plaintiff.

On December 23, 1879, the referee gave judgment in plaintiff's favor, whereupon a motion was made to substitute Platt as plaintiff in the action. Upon such application it'was decided that he must proceed by a supplemental complaint. This was accordingly served April 22, 1881, and defendants answered the same July 8, 1881, claiming that all proceedings in the action before the referee after March 22, 1872, were null and void, for the reason that Platt had not been substituted by order of the court as the plaintiff therein. Such substitution is now sought by the supplemental complaint, and upon the admitted facts of the case.

It is not disputed that the attorneys who commenced the action were authorized to continue it in behalf of both Archer

Platt agt. McMurray et al.

and the present plaintiff. The defense is radical in character, and distinctly raises the question of jurisdiction — that all proceedings therein since March 22, 1872, were coram non judice; that by the judgment of the supreme court of December 29, 1871, the corporation was dissolved and this suit abated, unless continued in the corporate name by special authority of the court.

By section 121 of the Code of Procedure-in force while the trial was pending—it is provided that in case of death, marriage or other disability of a party, the action shall not abate, but the court, on motion, at any time within one year thereafter, or afterward, on a supplemental complaint, may allow the action to be continued in the name of the original party, or may allow the person to whom the transfer is made to be substituted in the action. In case of any other transfer of interest the action shall be continued in the name of the original party; or the court may allow the person to whom the transfer is made to be substituted in the action.

It is not obligatory upon the transferee of an interest to make application for his substitution as a party to the action. If he does not it is continued in the name of the original party (Packard agt. Wood, 17 Abb., 318; Emmet agt. Bowers, 23 How., 300; Howard agt. Taylor, 5 Duer, 604; Ford agt. David, 1 Bosw., 569).

But it may be said that section 121 is general in its character and has no application to actions affecting corporations.. This objection is, I think, fully met and obviated by section 1, chapter 295, Session Laws of 1832, which provides that the dissolution of a corporation shall not abate any existing suit or proceedings in favor of such corporation, but the same may be continued by its receivers or trustees in the name of such corporation, or in the names of such receivers and trustees who may be substituted as plaintiffs under the direc tion of the court and subject to its order in relation to the payment or security of costs.

That a distinction exists between actions and proceedings.

Matter of an Attorney.

by or against a corporation is clearly recognized by chapter 295, Laws 1832, and by judge RAPALLO in McCullough agt. Norwood (58 N. Y., 568). The case of Talmage agt. Pell (9 Paige, 410), is not an adverse authority upon this point, for it was not involved therein. In that case a cross-bill was filed, to which the receiver of the plaintiff corporation was not a party, and substitution was refused upon that ground. In this case both the receiver and assignee were represented by attorney before the referee and in all subsequent proceedings.

The plaintiff having lawfully succeeded to the rights and interests of the bank, had a right to prosecute the action in its name without a formal order to that effect. His subsequent application for substitution as plaintiff therein was made in conformity with the practice of the court, and as it does not appear that the rights of the defendants have been impaired by any of the proceedings taken, there should be judgment for the plaintiff according the prayer of the supplemental complaint.

COURT OF APPEALS.

In the Matter of an ATTORNEY.

Attorney and client — Summary proceedings — To give the right to proceed summarily against an attorney, what is essential to be proved.

In order to give the right of proceeding summarily against an attorney, it is essential that the relation of attorney and client should exist between the parties in relation to the matter which is the ground for the application, and when the same is denied by the attorney the fact must be established by common-law proof.

Where a summary application is made to the court requiring an attorney to surrender papers intrusted to his care, which he claims to hold by virtue of a lien for services rendered to the applicant, he cannot be required to surrender the same until the said lien is paid, and if said lien is questioned it must be determined by the court or a referee, upon a proper investigation.

January, 1882.

Matter of an Attorney.

THIS was an appeal from an order of the general term of the supreme court in the first department, affirming an order of special term of said court punishing the appellant as an attorney for professional misconduct, by directing that he forthwith return a policy of insurance to the defendant, with the costs of the application.

It appeared by the affidavit of the respondent that he executed and delivered to the appellant, who was an attorney and counselor-at-law, a certain policy of life insurance with a power of attorney for the special purpose of enabling him to perfect or confirm the rights of the said respondent, with the understanding that the said policy should be returned to the respondent as soon as the purpose for which the same was placed in the hands of said appellant were accomplished. The petitioner further declared that the said attorney did, as said respondent is informed and believes, convert said policy to his own personal use and in utter disregard and violation of his duty as such attorney in fact, and as one of the attorneys and counselors of the court.

The appellant generally denied the allegation alleged in the petition, and that said power of attorney and policy of insurance were received by him as an attorney and counselor of law, and was therefore not liable upon a summary application, and that the said respondent was indebted to the appellant for about $980 for professional services and disbursements made as an attorney and counsel for the respondent, and that he held said policy and power of attorney by virue of his lien thereon for said services. The general term affirmed said order of special term and from which an appeal was taken to this court.

Abram Kling, of counsel for appellant.

Coudert Bros., of counsel for respondent.

FINCH, J.-We cannot sustain this order. It is founded rather upon suspicion than proof. It may be just to charac

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