Buser v. Jacobowsky

Plaintiff appeals from an order of the City Court of New York granting leave to defendant to serve a supplemental answer in an action for personal injuries, setting up a settlement with and a general release from the plaintiff. The motion was opposed below on the ground that the action was settled without the knowledge, consent, or authority of the plaintiff’s attorney, who, at the time of the settlement had a contingent interest in the recovery, to the knowledge of defendant and her attorney. The grounds urged for a denial of the motion were insufficient. O’Brien v. Met. St. Ry. Co., 27 App. Div. 1, 50 N. Y. Supp. 159; Zaitz v. Same, 52 App. Div. 626, 65 N. Y. Supp. 395; Varriale v. Same, 54 App. Div. 633, 66 N. Y. Supp. 559. The motion was properly granted, but it should have been upon “payment of all costs from the beginning of the action.” Varriale v. Met. St. Ry. Co., 54 App. Div. 633, 66 N. Y. Supp. 559.

The order appealed from should be modified so as to provide for the payment of costs as above indicated, and, as so modified, affirmed, without costs of this appeal, but with disbursements to the appellant.