Gaillard v. Smart
New York Supreme Court
The plaintiffs having sued the defendant for a large sum of money in assumpsit, and holden him to special bail ; one of their attorneys afterwards gave parol notice to the clerk of the attorneys for the defendant that the suit had been discontinued; and offered to pay the costs, The clerk requested a formal discontinuance ; but the at-r torneysfor the plaintiffs told him this was not necessary, The costs were never demanded of the plaintiffs; but the defendant paid them to…
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The plaintiffs having sued the defendant for a large sum of money in assumpsit, and holden him to special bail ; one of their attorneys afterwards gave parol notice to the clerk of the attorneys for the defendant that the suit had been discontinued; and offered to pay the costs, The clerk requested a formal discontinuance ; but the at-r torneysfor the plaintiffs told him this was not necessary, The costs were never demanded of the plaintiffs; but the defendant paid them to his attorneys ; and, with the consent of the special hail, went to Europe, where he still continues. The plaintiffs…
1Opinion of the Court
Curia, per
Savage, Ch. J.
It is worthy of remark, that only one of the plaintiffs makes an affidavit, denying any special authority in their attorneys to discontinue ; and if this were the question, I think we ought at least to intend, that the attorney would not act without such an authority, till the contrary is clearly shown by both.
But I do not think a special authority was necessary. Denton v. Noyes is relied on ; but, as I understand that case, it is an authority in favor of the right to discontinue under the general power of the attorney. It was there held, that a judgment confessed by…
2Cited by17 opinions
- Mark v. . City of BuffaloNew York Court of Appeals · 1881
- Davis v. HallSupreme Court of Missouri · 1886
- Jenney v. DelesdernierSupreme Judicial Court of Maine · 1841
- Cox v. New York CentralNew York Court of Appeals · 1875
- Vail v. ConantSupreme Court of Vermont · 1843
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