Nat'l Exhibition Co. v. Crane

• Decision Date: 14 June 1901
• Citation: 167 N.Y. 505,60 N.E. 768
• Parties: NATIONAL EXHIBITION CO. v. CRANE.
• Court: New York Court of Appeals Court of Appeals

167 N.Y. 505

60 N.E. 768

NATIONAL EXHIBITION CO.

v.CRANE.

Court of Appeals of New York.

June 14, 1901.

Appeal from supreme court, appellate division, First department.

Action by the National Exhibition Company against Samuel Crane, president of the Atlantic League of Professional Baseball Clubs. From an order of the appellate division (66 N. Y. Supp. 361) reversing an order of the special term discontinuing an action, on stipulation without costs, plaintiff appeals. Affirmed.

The plaintiff, a foreign corporation, brought this action against the defendant, as president of an unincorporated association, to recover a certain sum, as money had and received. The answer alleged several defenses, but no counterclaim. In due course of procedure the cause was reached for trial upon the day calendar, and was adjourned a number of times at the request of the plaintiff; the last adjournment being made upon the express promise of its attorney that he would try the case the next time it was reached. When again reached, upon the application of the plaintiff's attorney it was passed for the day, on the ground that negotiations were pending for a substitution of attorneys, with the assurance from the court, however, that it would have to be tried upon the following day. The next day, owing to a substitution of attorneys for the plaintiff, it was passed by consent until the 19th. In the meantime the defendant's association had gone out of existence, leaving no assets, its members were all financially irresponsible, and the only reliance of the attorney for the defendant for compensation was the costs of the action, of which the plaintiff had due notice. On the 19th the defendant's attorney was ready with his witnesses, subpoenaed at his own expense, to go on with the trial, as he had been on the previous occasions when the case was continued; but the announcement was made by the attorney for the plaintiff that he had just secured from Mr. Crane, the president of the defendant's association, a consent to discontinue, without costs. Crane had no interest in the action, but was merely an agent on a salary, and he attended court simply because he was subpoenaed by the attorney for the defendant. The court refused to allow a discontinuance, marked the case ‘Ready,’ and while it was in that situation the defendant was served with an order to show cause why the action should not be discontinued, without costs. Upon the return day the motion of the plaintiff was granted, but upon appeal the order was reversed by the appellate division, with leave to the plaintiff to apply for a discontinuance upon payment of costs. This appeal was brought pursuant to leave granted by the appellate division.

Parker, C. J., dissenting.

De Lancey Nicoll, for appellant.

John M. Ward, for respondent.

PER CURIAM.

The following question has been certified to us by the appellate division for decision, viz.: ‘Where it appears that, after issue joined in an action at law in which no counterclaim is interposed, the defendant, after the cause is on the calendar and noticed for trial, without the knowledge or consent of his attorney, without paying or providing for the payment of his costs, and for the purpose of depriving him of his costs, stipulates with the plaintiff that the action may be discontinued without costs, is the supreme court vested with discretionary power to impose the payment of costs to the defendant's attorney by plaintiff, as a condition to the granting of an order discontinuing the action on application of the plaintiff?’ Honest settlements by parties, made with no intention to take advantage of their attorneys, but for the simple purpose of ending the litigation, are praiseworthy and should be encouraged. Dishonest and collusive settlements, made with intent to defraud the attorneys upon either side, are reprehensible, and should be condemned. The plaintiff asked for relief founded on a settlement of the latter character, and the court had the power to refuse to stain its records by an entry based upon fraud. The power of the court is...