Shuler v. Maxwell , 45 N.Y. Sup. Ct. 240 ( 1885 )

LeabNed, P. J.:

One important question is whether an appeal from a judgment can be taken Dy a new attorney without substitution. Sections 1300 and 1302 of the Code of Civil Procedure show that the notice of appeal from a judgment is to be served upon the attorney for the adverse party if he is living. Therefore it follows that the power of the attorney to receive a notice of appeal extends beyond the judgment. By analogy the power to serve a notice of appeal should extend in like manner. And if the power to serve a notice of appeal does extend beyond the judgment by virtue of the previous retainer, tben it follows tbat another attorney cannot serve the notice until he has been substituted.

To this same effect is rule 4 of the Court of Appeals. Although that is a different court from the court from which an appeal is taken, yet that rule says that, the attorneys and guardians ad litem of the respective parties, shall be deemed the attorneys and guardians in that court until others are appointed and notice thereof given. That rule, therefore, declares that on appeal to that court from another court the power of the attorneys continues, although judgment below has been entered. So that, if the present were an attempted appeal to that court, the appeal would not be well taken. Certainly the principle is stronger when the appeal is to the General Term of the Supreme Court. The action is there pending in the same court, and its rule 10 would apply.

The old writ of error was the beginning of a new action, often with a change in the position of the parties. An appeal is not, although in some earlier cases the old views seem to have continued in the language of the opinions.

The point discussed is decided in favor of the plaintiff’s views by Justice HardiN in Miller v. Shall (67 Barb., 447). The same view is incidentally stated by the court in Fry v. Bennett (7 Abb., 352 at page 355), as well as by Judge HoffMAN at page 362. It is favored by the opinion in Bathgate v. Haskin (59 N. Y., 535).

In Parker v. Williamsburgh (13 How., 250) service of notice of judgment on the defendant’s attorney was held good, although his official term had expired, his successor not having caused himself to be substituted. The case of Lusk v. Hastings (1 Hill, 656) when examined carefully, shows that on a motion to set aside proceedings the court held that the authority of the attorney for the defendant continued long after judgment against him.

We have examined all the cases referred to by defendant’s counsel and we And none which really affect this case in the points decided.

In this action of foreclosure especially the duty of the defendant’s attorney plainly continues after judgment. Often one of the important acts is to see that the property is sold in a legal matter and for a good price. The sale is to be confirmed on notice to the defendant’s attorney, wbo may have occasion to oppose such confirmation or to ask for a resale.

We may take notice of tbe fact tbat of litigated actions few stop with tbe first trial. Appeals are taken in a large number, and those appeals are taken by the attorneys wbo have conducted tbe previous proceedings. And tbe convenient and orderly disposition of business favors tbe view tbat, if another attorney is to be employed, a regular substitution should be bad.

Tbe defendant in this case was promptly notified of tbe defect of her notice. She might very possibly have bad an amendment or have served a new notice. But she did not. The time when tbe notice was served gives some force to tbe plaintiffs claim tbat it was not in good faith. But we do not pass on tbat. Nor do we decide .whether or not tbe defendant may still amend tbe notice by leave. Tbe only question is whether tbe Special Term should have set aside tbe sale.

Tbe judgment in this case is stated to have been entered by tbe consent of all tbe defendants. Perhaps a valid appeal may be taken from sucb judgment, and may be in force until dismissed. But tbe appellant does not stand in a strong position when she uses sucb an appeal as a ground to set aside a sale.

Another ground of tbe motion is tbat tbe sale was not in parcels. It appears that Margaret L. Maxwell, tbe appellant here, is not tbe owner of tbe premises, and tbat her liability is only for a deficiency if any should arise. It appears by tbe affidavits tbat there is no deficiency, and tbe appellant’s counsel asserts nothing to the contrary. She therefore has no interest in tbe sale and is not affected even if the property did not bring as much as it might have done. Those wbo are interested do not complain.

We are of opinion tbat tbe motion was properly denied.

Order affirmed, with ten dollars costs.

LaNDON, J., concurred. Present — Learned, P. J., and Landor, J.

Order affirmed, with ten dollars costs and printing disbursements.