Toma v. Foundation Co. , 104 N.Y.S. 263 ( 1907 )

Per Curiam :

The plaintiff began two actions by separate attorneys against the Foundation Company for damages for personal injuries.

To the complaint in the second action the defendant pleaded the pendency of the first action as a bar. The attorney in the second action moved in that action to set aside the summons and all subsequent proceedings in the first action, and the motion, after a reference, was granted and the attorneys in the first action personally charged with the costs of the reference. This procedure was entirely irregular. If the plaintiff desired to call in question the authority of the attorney in the first action he should have made the appropriate motion in that action, not in some other. To attempt ' in one action to set aside the service of process in another action is quite unprecedented and unauthorized, and cannot be sustained. The whole matter is nothing but a quarrel between two attorneys, and if it were necessary to go into the merits we should find much difficulty in sustaining the conclusion at which the referee arrived as to. the priority of the retainer. We prefer, however, to place Our reversal of the order upon the irregularity of the whole proceeding.

The order should be reversed, with costs and disbursements against the respondent, attorney, personally, and motion denied.

Present—Patterson, P. J., Ingraham, Laughlin, Glares . and Scott, JJ.

Order reversed, with ten .dollars costs and disbursements against the respondent, attorney, personally, and motion denied.