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petitioners, being an attorney of this court, was the attorney of record for the defendants in that action; but Mr. Norman had appeared for the petitioners as counsel. That action was tried, and resulted in a judgment being rendered against the petitioners, which was affirmed. by the Appellate Division in the Second Department, and from the decision of the Appellate Division an appeal was taken to the Court of Appeals, which appeal was still pending; that the case on appeal was printed by the petitioners, and the expense paid by them, and 30 copies of the record were delivered to Mr. Norman for the purpose of filing the same with the clerk of the Court of Appeals, the time to file which expired on the 1st of February, 1909; that Mr. Norman had not filed the copies of the record with the Court of Appeals, and had been requested to deliver them to the petitioners to be filed, or to file the same, in the Court of Appeals, but refused to comply with the demand; and the prayer of the petitioners was that Mr. Norman be required to immediately deliver the copies of the printed cases on appeal to the petitioners.
It appeared that on January 7th Norman wrote to the petitioners, stating that he had received a letter from the Court of Appeals that the brief must be filed by February 1, 1909, but, as the petitioners had refused to advance the necessary money for printing and other disbursements, he refused to continue as petitioners' counsel and notified the petitioners of his withdrawal; but he refused, under the advice of his counsel, to deliver these printed records to enable the appeal to be perfected until the petitioners discharged the indebtedness claimed for legal services theretofore rendered. In answer to this application Norman submitted an affidavit stating that he had been retained by the petitioners in various legal proceedings and to act as counsel in the action referred to in the petition; admits having received from the petitioners various sums of money, aggregating $2,050; claims that the petitioners are indebted to him for legal services and disbursements in the sum of $4,950, in addition to the payments made, for which he has commenced three actions against the petitioners; and claims a lien. upon these printed records in his possession. The expense of printing these records was borne by the petitioners, and they were delivered to Norman for the specific purpose of being filed with the clerk of the Court of Appeals, in order to make an appeal to that court effective.
Upon the withdrawal of Norman from any further connection with the litigation, his relation as attorney for the petitioners ceased; and, while he undoubtedly had a lien upon the papers and property of his clients in his hands for his legal fees, such a lien did not apply to copies of printed records, which were required to be filed in court, and which were received by the attorney for that purpose. They were not papers received by an attorney or counsel, to be retained by him to be used in the litigation, but were records required by the rules. of the court to make an appeal effective, and which were printed by the petitioners for a particular use and delivered to the attorney to be applied to the purpose for which they were printed. When the attorney received them for that purpose, it was with an obligation to use them for the purpose for which they had been printed and for
form this duty would be a violation of his duty to his client, which he could not justify by a claim that his charges for legal services had not been paid, and if, by retaining these records in his possession, the appeal would be rendered useless, an attorney would subject himself to a serious charge of professional misconduct, and might be liable for any damages sustained by reason of his default in preventing his client from prosecuting the appeal.
Whatever may be said as to the right of this attorney to retain possession of papers left with him by his client relating to the general litigation and professional relations between them, it is quite clear that it does not extend to records and papers which by the rules of the court have to be filed in court, and which have been delivered to the attorney and received by him for that purpose. This attorney, therefore, was bound by his professional duty to his client to see to it that these records were filed with the clerk of the Court of Appeals as required by its rules, and his refusal to either file them with the clerk or deliver them to the petitioners to be filed until his fees were paid was a breach of his professional obligation, and it was the duty of the court to enforce that obligation summarily.
The order appealed from must therefore be reversed, with $10 costs. and disbursements, and the motion granted, with $10 costs, to be paid by the attorney personally, and the attorney required, within five days after the service of this order, to deliver the printed records in his possession to the petitioners. All concur.
In re BERGSTROM.
(Supreme Court, Appellate Division, First Department. April 23, 1909.)
Appeal from Special Term, New York County.
Application by Oscar B. Bergstrom for an order to A. Livingston Norman to deliver certain papers. From an order denying the application, petitioner appeals. Reversed, and application granted.
Argued before INGRAHAM, LAUGHLIN, CLARKE, HOUGHTON, and SCOTT, JJ.
Oscar B. Bergstrom, for appellant.
INGRAHAM, J. The questions presented on this application are the same as those presented in the proceeding against the same attorney decided herewith. 116 N. Y. Supp. 245. For the reasons stated in the opinion on that appeal, the order appealed from is reversed, with $10 costs and disbursements, the motion granted, with $10 costs, to be paid by the attorney personally, and the attorney required, within five days after the service of this order, to deliver the printed records in his possession to the petitioners. All concur.
HURWITZ v. MOORE, Superintendent of Buildings, et al.
(Supreme Court, Appellate Division, Second Department. April 23, 1909.) 1. MUNICIPAL CORPORATIONS (§ 621*) — PERMISSION TO MOVE BUILDINGS OVER HIGHWAYS-PERMISSION TO MAKE ALTERATIONS IN BUILDINGS.
The permission of the president of the borough of Brooklyn to move buildings through highways in accordance with a city ordinance and the permission of the superintendent of buildings of the borough to make alterations in the building are independent; and one obtaining a permit to make alterations cannot move the building over the highways, and one obtaining a permit to move the building over the highways cannot make alterations without obtaining a permit from the superintendent of buildings.
[Ed. Note. For other cases, see Municipal Corporations, Dec. Dig. § 621.*]
2. MUNICIPAL CORPORATIONS (§ 225*)—Sale of PROPERTY-VALIDITY.
The right of the city of New York to attack the validity of a sale of a building belonging to the city, because not sold at public auction as required by City Charter (Laws 1901, p. 641, c. 466) § 1553, cannot be raised by it on the application of one claiming under the purchaser for a permit to make alterations in the building according to specifications; but such question must be raised by a direct attack, wherein the rights of the purchaser and of the one claiming under him and of the city may be protected.
[Ed. Note. For other cases, see Municipal Corporations, Dec. Dig. 8 225.*]
Appeal from Special Term, Kings County.
In the matter of the application of Calmon Hurwitz for a peremptory writ of mandamus against David F. Moore, as Superintendent of Buildings of the Borough of Brooklyn, City of New York, and another. From an order denying the motion for a peremptory writ, petitioner appeals. Reversed, and motion for a peremptory writ granted. Argued before HIRSCHBERG, P. J., and WOODWARD, JENKS, RICH, and MILLER, JJ.
John E. Walker, for appellant.
MILLER, J. This is an appeal from an order denying a motion for a peremptory writ of mandamus. On the 31st of August, 1908, the comptroller of the city of New York sold to the Empire House Wrecking Company three five-story brick buildings, located in the borough of Brooklyn within the lines of the approach to the new Manhattan Bridge, and received the sum of $1,700 therefor and a deposit of $850 as a security for the performance of the stipulations of the contract of sale and the removal of the buildings in accordance therewith. Subsequently the petitioner purchased of that company all of its rights to two of the houses, and the transfer to him was approved by the comptroller. The petitioner then obtained from the superintendent of highways of the borough of Brooklyn a permit for the removal of said buildings to land owned by the petitioner, and gave a bond in the sum of $3,000 to indemnify the city against any damage or
injury by reason of the removal of said buildings. Thereafter the petitioner applied to the superintendent of buildings of the borough of Brooklyn for permission to make alterations to said buildings in accordance with plans and specifications approved by the tenement house department; and said superintendent declined to pass upon the application, giving as a reason that the borough president had instructed him. not to do so. The borough president says that he instructed the superintendent of buildings not to approve the application for two reasons: First, that no application has been made to him in accordance with section 269 of the city ordinances for permission to move said buildings through or across the highways; and, second, that the sale of the buildings by the comptroller to the petitioner's vendor or assignor was void, for the reason that the property was not sold at public auction as required by section 1553 of the charter (Laws 1901, p. 641, c. 466).
The permission of the borough president to move the buildings across the highway and the permission of the superintendent of buildings to make alterations are independent. Neither is a condition precedent to the granting of the other. If the petitioner obtains the permit asked for in this proceeding, he will still have to have the permit of the borough president before he can move the buildings across the highway; and, if he should obtain such permit, he would still have to have the permit of the superintendent of buildings before he could make the proposed alterations. The granting of the one need not affect or embarrass the consideration of the application for the other.
The sole remaining question is: Can the respondent refuse to consider the application because of the illegality of the sale by the comptroller? The right of the city to attack the sale is not now involved. Certainly the city could not keep both the property and the money received on the sale, and it is unnecessary now to determine whether it could disaffirm the sale without first returning, or offering to return. the money. As superintendent of buildings, the respondent has no concern with the question and should not be permitted to raise it collaterally. If it is desirable to question the legality of the sale, it should. be done by a direct attack, wherein the rights of the vendee and of the petitioner, as well as those of the city, can be protected.
The order should be reversed, and a peremptory writ granted, requiring the respondent Moore to pass upon the petitioner's application.
Order reversed, with $10 costs and disbursements, and motion for peremptory writ granted, with $10 costs. All concur.
PIETRAROIA v. NEW JERSEY & H. R. RY. & FERRY CO. (Supreme Court, Appellate Division, First Department. April 16, 1909.) 1. STREET RAILROADS (§ 114*)—INJURIES TO PERSON ON TRACK-CONTRIBUTORY NEGLIGENCE-SUFFICIENCY OF EVIDENCE.
In an action against a street railroad for death of plaintiff's intestate through being struck by a car while attempting to cross defendant's tracks, evidence held to show contributory negligence on the part of deceased.
[Ed. Note. For other cases, see Street Railroads, Dec. Dig. § 114.*] "For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes
2. STATUTES (8 1*)-EXTRATERRITORIAL FORCE.
The statutory law of a state has no extraterritorial force.
3. DEATH (§ 35*)-ACTION-JURISDICTION.
Courts will not take jurisdiction of an action for death, where all the parties interested were nonresidents, the accident occurred in another state, and, but for the fact that decedent left a small property in the state, the courts would have had no jurisdiction.
[Ed. Note. For other cases, see Death, Cent. Dig. § 50; Dec. Dig. § 35.*] Patterson, P. J., and Houghton, J., dissenting in part.
Appeal from Trial Term, New York County.
Action by Pietro Pietraroia, as administrator, etc., against the New Jersey & Hudson River Railway & Ferry Company. From a judgment for plaintiff, and from an order denying a motion for a new trial, defendant appeals. Reversed, and complaint dismissed.
Argued before PATTERSON, P. J., and INGRAHAM, CLARKE, HOUGHTON, and SCOTT, JJ.
Clarence E. Thornall, for appellant.
HOUGHTON, J. The action is to recover damages for the negligent killing of plaintiff's intestate, while she was attempting to cross one of defendant's tracks. The defendant is a New Jersey corporation, operates a ferry across the Hudson river from New York City to Ft. Lee, and a double-track street railway running from that place to various points in northern New Jersey. In the evening of October 19, 1906, the deceased, in company with her husband and another man, were intending to board a north-bound car on Broad avenue, in what is known as "Palisades Park." As they came to the far side of the avenue, a car was observed going in the desired direction, and the husband and friend went ahead of the deceased to detain the car for her. Whether from unwillingness to delay or lack of understanding on the part of the conductor, he refused to hold the car and started it with the two men aboard. From the testimony on the part of plaintiff it is apparent that the deceased proceeded diagonally northward in the vicinity of the south-bound track, in the hope of overtaking the car which her husband had boarded. A south-bound car coming at a rapid rate struck and killed her just as she was stepping over the outer rail of the south-bound track. It is also clear from the plaintiff's own proof that the point of the accident was about 75 feet north of the intersecting street where the husband had gotten aboard. Although there is some testimony that, when the witnesses first observed the deceased, she was 4 or 5 feet west of the south-bound track and in the vicinity of the northerly crosswalk of Central Boulevard, it is manifest that the accident did not happen at that point, as the plaintiff now insists, but at a point considerably further north. The south-bound car carried a lighted reflector headlight, which was very brilliant.
If it be conceded that the defendant was negligent in the speed at which the south-bound car was run, and that the motorman was careless in observing the movements of the decedent, still we are of the