Mazzella v. American Home Const. Co.
| Decision Date | 16 February 1961 |
| Citation | 211 N.Y.S.2d 131,12 A.D.2d 910 |
| Parties | Louis MAZZELLA, individually, and as Assignee of Jessie Mazzella, Plaintiff-Appellant, v. AMERICAN HOME CONSTRUCTION COMPANY, Inc., Defendant-Respondent. |
| Court | New York Supreme Court — Appellate Division |
H. W. Grubart, New York City, for plaintiff-appellant.
I. Nathanson, Brooklyn, for defendant-respondent.
Before BREITEL, J. P., and RABIN, McNALLY, STEVENS and EAGER, JJ.
Order, entered on October 24, 1960, granting defendant's motion to direct plaintiff to consummate a settlement of the action, unanimously reversed, on the law and on the facts, without costs, and the motion denied. The plaintiff's attorney states unequivocally that he was without authority from his client to enter into any settlement agreement. He also states--and it is conceded--that at the time of the settlement discussions he unsuccessfully sought to contact and consult with his client. Failing in such attempt he states--and nothing in the record contradicts this statement--that he advised the Court and his adversary that the settlement was made subject to his client's approval. Such approval was not only never obtained but he states that the plaintiff affirmatively rejected the settlement. The client's approval must be deemed to have been a condition precedent to the agreement becoming effective and absent such approval the settlement has no vitality. Moreover, it is clear that in the absence of authority to do so an attorney may not settle his client's claim (Countryman v. Breen, 241 App.Div. 392, 271 N.Y.S. 744, affirmed 268 N.Y. 643, 198 N.E. 536; Schneider v. Abrams, 228 App.Div. 1, 238 N.Y.S. 351). From this record it appears that the plaintiff never authorized nor approved the settlement and it may not now be enforced.
To continue reading
Request your trial
-
Fox v. Wiener Laces, Inc.
...client's consent (Countryman v. Breen, 241 App.Div. 392, 271 N.Y.S. 744, aff'd 268 N.Y. 643, 198 N.E. 536; Mazzella v. American Home Construction Co., 12 A.D.2d 910, 211 N.Y.S.2d 131). It is rather a case where a client expressly authorized settlement, and that fact was communicated to oppo......
-
Hallock v. State
...Spisto v. Thompson, 39 A.D.2d 598, 331 N.Y.S.2d 818; Leslie v. Van Vranken, 24 A.D.2d 658, 261 N.Y.S.2d 103; Mazzella v. American Home Constr. Co., 12 A.D.2d 910, 211 N.Y.S.2d 131). Quartararo unquestionably had authority from plaintiffs to conduct settlement negotiations with defendants as......
-
Owens v. Lombardi
...N.Y. 628, 635; Countryman v. Breen, 241 App.Div. 392, 271 N.Y.S. 744, affd. 268 N.Y. 643, 198 N.E. 536; Mazzella v. American Home Construction Co., Inc., 12 A.D.2d 910, 211 N.Y.S.2d 131). The central issue in this case is whether appellants' attorney had authority to act for his clients in ......
-
Watson v. Alliance II Associates
...). The record does not support the court's finding that plaintiff should be bound to the settlement ( see Mazzella v. American Home Constr. Co., 12 A.D.2d 910, 211 N.Y.S.2d 131 [1961] ). TOM, J.P., FRIEDMAN, NARDELLI, ACOSTA, ABDUS-SALAAM, JJ., ...