Cottrell v. Finlayson
New York Supreme Court
The affidavit showed that the defendant, as attorney for the plaintiff, had collected several sums of money from different individuals ;• that the defendant was at the time an attorney of this court; that plaintiff demanded payment, which was refused by defendant on the pretence that Ms account for services rendered exceeded the amount of the money collected.
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The affidavit showed that the defendant, as attorney for the plaintiff, had collected several sums of money from different individuals ;• that the defendant was at the time an attorney of this court; that plaintiff demanded payment, which was refused by defendant on the pretence that Ms account for services rendered exceeded the amount of the money collected. The plaintiff then instituted an action in this court and after a litigated suit recovered, on 14th January last, judgment against ■ the defendant for $54 damages and $64.95 costs of suit. The plaintiff now moves for an order that the…
1Opinion of the Court
Parker, Justice.
'—-In this case the plaintiff might have applied for an attachment in the first instance, after making demand of the money, (3 Caines, 221; 5 John. 368 ; 4 Cowen, 76 ; 6 Cowen, 596 ; 4 Hill, 42, 565.) Instead of doing so, he commenced an action which was litigated, and after having recovered a judgment in which the costs exceed the amount of money collected, now applies to this court for a more summary remedy. I tMnk the proceeding by action was a waiver of the right to proceed by attachment, It seems to have been so regarded in Bohanan v. Peterson, 9 Wend. 503. It is not…
2Cases cited2 opinions
- People v. SmithNew York Supreme Court · 1805
- Bohanan v. PetersonNew York Supreme Court · 1833
3Cited by3 opinions
- Butchers' Union Slaughterhouse & Live Stock Landing Co. v. Crescent City Live Stock Landing & Slaughterhouse Co.Supreme Court of Louisiana · 1889
- Gabriel v. Schillinger Fire Proof Cement & Asphalt Co.New York Supreme Court · 1898
- Windsor v. BrownSupreme Court of Rhode Island · 1885