O'Brien v. Metropolitan Street Railway Co.

Barrett, J.:

We agree with the plaintiff’s attorney that, notwithstanding the mandatory language used in section 544 of the Code of Civil Procedure, it was within the discretion of the court below to grant or ■ -refuse this application. That discretion is, however, re viewable •here. In this case we see no reason why the application should have .-been refused. It is conceded that the plaintiff has settled the case and has given the defendant a release. Why should not the defendant be permitted to plead the release? None is suggested save that •the plaintiff’s attorney has made an agreement with his client whereby he is to receive as compensation for his services a sum equal to thirty-five per cent of the recovery; but this is no reason why, as between the plaintiff, and the defendant, the release should mot be pleaded. The attorney’s rights, under his agreement with •his client, are not affected by the release, nor will they be prejudiced by the plea thereof. If he • desires to prosecute the action in the plaintiffs name for his own benefit he may still do so. In that case, .Jhowever, he should take the risk of liability for the defendant’s ■costs in case he fails upon the merits.

There is no laches here. The delay in moving was slight and ■could have prejudiced neither the plaintiff nor his attorney. Certainly it is not shown that injustice would be wrought by allowing "the supplemental answer.

The attorney can be amply protected by permitting him to continue the action, if he so elects, for the purpose of satisfying his lien, but, at the same time, requiring him to assume the payment of •any judgment for costs which the defendant may recover.

The' order appealed from, should, therefore, be reversed, with ten ■«dollars costs and the' disbursements of this appeal, and the motion .¿granted, with leave, however, to the attorney to continue the action Tor the purpose indicated, upon his assuming the payment of any .judgment for costs which may be recovered by the defendant.

Van Brunt, P. J., Rumsey, Ingraham and McLaughlin, JJ., -concurred.

Order reversed, with ten dollars costs and disbursements, and "motion granted, with leave to the attorney to continue the action for "the purpose of satisfying his lien, upon his assuming the payment of •any judgment for costs which may be recovered by the defendant.