Forstman v. Schulting

• Decision Date: 17 January 1888
• Citation: 108 N.Y. 110,15 N.E. 366
• Parties: FORSTMAN et al. v. SCHULTING et al.
• Court: New York Court of Appeals Court of Appeals

108 N.Y. 110

15 N.E. 366

FORSTMAN et al.

v.SCHULTING et al.¹

Court of Appeals of New York.

January 17, 1888.

Appeal from general term, supreme court. Third department.

On summary application by Julius Forstman et al., respondents, to compel C. Bainbridge Smith, appellant, to pay to respondents' attorney the sum of $69.54 and $10, costs of motion, which sum of $69.54 had been paid by him, as costs, to said Smith, as attorney for defendant, under an order of the special term in the case of Forstman et al. v. Schulting.

The court will not order an attorney to pay over a sum of money, except upon the application of the client to whom the money is due. In re Fenton, 5 Nev. & M. 239, 2 Adol. & E. 129, 30 E. C. L. 404.

There is no power in the court to compel an attorney to pay money in a case when an action against him to recover it could not be maintained. The plaintiff in this action could not maintain an action to recover it from the attorney for the defendant. Bates v. Struges, 2 Moore & S. 172, 28 E. C. L. 503.

It is well settled that one acting in the character of a known agent is not liable, but only his principal, and the rule which obtains in cases of principal and agent is applicable to attorneys and clients. Judson v. Gray, 11 N. Y. 408;Landley v. Warner, 3 N. Y. 327;Robins v. Bridge, 3 Mees. & W. 141.

The order to compel the attorney, as an officer of the court, to restore to plaintiff moneys to which he had no claim, but which had been wrongfully taken from plaintiff, was within the discretion of the supreme court. Fraser v. Ward, 9 Civ. Proc. R. 11, 16; Willmerdings v. Fowler, 55 N. Y. 641.

C. Bainbridge Smith, ( Nathaniel C. Moak, of counsel,) for appellant.

W. Watson, (Matthew Hale, of counsel,) for respondents.

RUGER, C. J.

The appellant is the attorney of the defendant, and appeals to this court from an order of the general term requiring him to return to the plaintiff certain moneys collected of him by said attorney, as costs, under an erroneous order. From the quite imperfect statement of the facts in the case, we infer that the defendant obtained an order at special term, awarding him certain costs against the plaintiff, which were paid, but upon appeal the general term reversed so much of the order as awarded costs in excess of those allowed upon a motion, and ordered the defendant to repay such excess to the plaintiff within fave days after service of its order. Upon application to the defendant's attorney for repayment, he, at various times, promised to repay them, but neglected to do so. Thereupon this application was made to compel such payment. The general term made an order requiring the attorney to make restitution of such costs, unless the same should be paid within 20 days by the defendant, or unless the attorney should make and file an affidavit that said costs had been paid over by him to his client. The defendant's attorney neglected to avail himself of the terms extended by the order, and appealed to this court for a reversal of the same.

We think the order was properly made, and should be enforced. It has been the uniform practice of the courts to exercise summary jurisdiction over the conduct of parties and attorneys in actions pending in court, and enforce obedience to orders and directions made by it in the interest of fair dealing and honesty, to protect the rights of all parties or persons whose rights have been affected by the litigation. Both parties and attorneys, who, through the aid of the court, have come into possession of property or money during a litigation which subsequent proceedings in the action show was either wrongfully acquired or unjustly retained, may be compelled to restore it to the rightful owner, by order and attachment to enforce such restoration. It was held, in Langley v. Warner, 3 N. Y. 327, that where moneys were collected by execution from a party to an action,...