
    Norman Cox, Executor, etc., Appellant, v. The New York Central and Hudson River Railroad Company, Respondent.
    In an action against a railroad company to recover damages for injuries sustained by a passenger in consequence of being unlawfully ejected from its cars, defendant’s counsel, as a condition for putting the cause over a Circuit, Stipulated that in case of the death of plaintiff before final judgment and determination of the action the alleged cause of action should survive, and any verdict and judgment be regarded as if rendered in plaintiff’s lifetime; and also, that in case of such death plaintiff’s representatives might be substituted as plaintiff. Held, that the stipulation continued in force until final judgment, although meanwhile a verdict and judgment in plaintiff’s favor had been set aside.
    Also, held, that the stipulation was one the attorney for defendant, or its counsel (it having been conceded that the counsel had the same authority as the attorney), had power to make; that the court had the authority to impose the condition; that it was not against public policy, and was binding upon defendant.
    
      (Argued December 8, 1875;
    decided December 14, 1875.)
    . A verdict and judgment obtained in plaintiff’s lifetime having been set aside, plaintiff died before a second trial, and his executors were substituted. Upon the second trial the objection that the action did not survive was taken and overruled. Held, no error; that plaintiff’s representatives might have proceeded with the action in the name of the original plaintiff, but their becoming parties to the record was no insuperable objection to a judgment in their favor; and that the stipulation was a sufficient answer to the objection.
    
      Cox v. N. Y. C. and H. R. R. R. Co. (4 Hun, 176; 6 T. & C., 405) reversed.
    Appeal from order of the General Term of the Supreme Court in the third judicial department, reversing a judgment in favor of plaintiff entered on a verdict, and adjudging the action abated. (Reported below, 4 Hun, 176 ; 6 T. & 0., 405.)
    This action was brought originally in the name of Henry Peck, plaintiff’s testator, to recover damages for injuries alleged to have been sustained by said Peck in consequence of being unlawfully ejected by the conductor from one of defendant’s cars, in which he was riding as a passenger. The cause being noticed and on the calendar, a motion was made by defendant’s counsel to put the case over the term, as a condition of granting the motion, a stipulation was given, signed by defendant’s counsel, containing these clauses, among others:
    “ It is also stipulated that in case of the death of the plaintiff herein before final judgment and determination of this action, that the alleged cause of action shall survive, and any verdict and judgment therein be regarded as if rendered in the lifetime of the plaintiff.”
    “It is also stipulated that in case of the death of said plaintiff before the final determination of said action that the personal representatives of said plaintiff be substituted as party plaintiff herein by order to be entered upon filing this stipulation.”
    The cause was' subsequently brought on for trial, which resulted in a verdict and judgment for plaintiff, but upon appeal the judgment was reversed and a new trial ordered. Prior to the new trial plaintiff died, and upon filing the stipulation an order was entered substituting the present plaintiff and his executors as plaintiffs. Upon the new trial defendant moved to dismiss the complaint, on the ground that the action abated upon the death of the original plaintiff, whereupon the plaintiffs gave in evidence the said stipulation. It was admitted that the counsel who signed it. had the same authority so to do as defendant’s attorney in the action. The motion was denied, and defendant’s counsel duly excepted.
    
      Robert A. Stanton for the appellant.
    The stipulation of defendant’s counsel was binding, although he was not expressly authorized to give it. (Higgins v. W. Tpke. Co., 46 N. Y., 23; Weed v. Pan. R. R. Co., 17 id., 362 ; Sanford v. Eighth Ave. R. R. Co., 23 id., 343 ; Jackson v. Second Ave. R. R. Co., 47 id., 274; Cosgrove v. Ogden, 49 id., 255 ; Read v. French, 28 id., 285 ; Hamilton v. Wright, 37 id., 502.) It was the duty of the counsel to determine whether to give the stipulation. (Grah. Pr., 46, 941; Gaillard v. Smart, 6 Cow., 385; Tiffany v. Lord, 40 How., 481; Russell v. Lane, 1 Barb., 526 ; Ames v. Webbers, 10 Wend., 575, 625; 3 Wait’s Pr., 75; Gainsford v. Grammar, 2 Cowp., 9 ; College v. Horne, 3 Bing., 119; Field v. Hemming, 7 C. & P., 619; Doe v. Bird, id., 6.) By receiving the benefit of the stipulation defendant ratified the act of its counsel, and is estopped from denying his authority to give it. (Bennett v. Judson, 21 N. Y., 239; Elwell v. Chamberlain, 31 id., 611, 619 ; Leslie v. Wiley, 47 id., 652; Craig v. Ward, 3 Keyes, 393 ; Olmstead v. Hotaling, 1 Hill, 318; Mehan v. Forrester, 52 N. Y., 277; N. Y. and N. H. R. R. Co. v. Schuyler, 34 id., 88; Carpenter v. Otley, 2 Lans., 457 ; Farmers’ Loan and Trust Co. v. Walworth, 1 N. Y., 433; Moss v. Rossie Lead Mining Co., 5 Hill, 137; Hope v. Lawrence, 50 Barb., 258 ; Hoyt v. Thompson’s Exrs., 19 N. Y., 218 ; Cairns v. Bleeker, 12 J. R., 300; Vianna v. Barclay, 3 Cow., 281; Johnson v. Jones, 4 Barb., 369; Berwick v. Dusenbury, 32 How., 348; Hathaway v. Payne, 34 N. Y., 109, and cases cited; Benedict v. Smith, 10 Paige, . 126; Foster v. La Rue, 15 Barb., 325 ; Whitney Arms Co. v. Barlow, 1 N. Y. Weekly Digest [Ct. of App.], 305.) The court had power to enforce the stipulation. (Ames v. Webbers, 10 Wend., 575, 624; 11 id., 186; Arch. C. L. Pr., 407; Wrightson v. Bywater, 3 M. & W., 199 ; Lewin v. Holbrook, 2 Dowl. N. C., 991; 11 M. & W., 110; In re Hare, 8 Dowl. P. C., 71; Griffith v. Williams, 1 C. & J., 47; McDougal v. Robertson, 2 Y. & J., 28; 1 M. & P., 147; 4 Bing., 435 ; Blundell v. Brittargh, 17 Ves., 242 ; Tyler v. Jones, 3 B. & C., 144; Clark, v. Crofts, 4 Bing., 143; Palmer v. Cohen, 3 B. & Ad., 966 ; Lopez v. De Tastet, 8 Taunt., 712; Rogers v. Stanton, 7 id., 576 ; Smith y. Fielder, 10 Bing., 306; Bower v. Taylor, 7 Taunt., 575 ; Touissant v. Hartop, 7 id., 571; Palmer v. Cohen, 2 B. & Ad., 966 ; Biddle v. Dowse, 6 B. & C., 255 ; Cooper v. Johnson, 2 B. & Ad., 395.)
    Isaac S. Newton for the respondent.
    The stipulation did not estop defendant from claiming that the action had abated. (Shapley v. Abbott, 42 N. Y., 443; White v. Ashton, 51 id., 280; Vanderbilt v. Rich. Co., 2 Comst., 479.) An attorney in a suit has not power to stipulate that it skall'not abate. (People v. Mayor, etc., 11 Abb., 66, note; 6 Barb., 392; 3 id., 584; 5 Cow., 35; 45 N. Y., 635; 2 How., 244; 25 Penn., 264; 16 Ill., 472; 7 Cranch, 436; 45 N. Y., 665 ; 6 Robt., 63 ; 15 How., 539 ; 1 Pick., 347; 6 D. & L., 48; 10 Paige, 126 ; 8 J. R., 361; 21 Wend., 362; 10 J. R., 220; 11 id., 464; 4 Cow., 717; 4 Den., 295; 2 Stock., 21; 9 Bosw., 543; 11 Abb. [N. S.], 442; 2 Zab., 29; 36 How., 378 ; 6 Cow., 388 ; 45 N. Y., 635.)
   ' Andrews, J.

We should be sorry to find that there is any rule of law which prevents our giving effect to the stipulation made by the counsel for the defendant on his application to postpone the trial at the Circuit held in February, 1872. The cause was then at issue, and was ready for trial on the part of the plaintiff’s testator,' who was then living, but was in feeble health; and the stipulation was tendered by the defendant’s counsel, at the suggestion of the counsel for the plaintiff, and was given, as the case admits, as a condition for putting the cause over the Circuit, and was presented to the court with the application to postpone the trial, which was granted. The giving of the stipulation, under these circumstances, must be regarded as a compliance by the defendant’s counsel with a condition imposed by the court upon granting the postponement. It cannot be supposed that it would have been given unless required, or that it was not an essential consideration with the court in granting the motion.

The stipulation was to the effect that the cause of action should not abate in case of the death of the plaintiff before final judgment should be rendered in the action; and that any verdict thereon should be regarded as if rendered in his lifetime; and that in case of his death before the final determination of the action, his personal representatives might be substituted as .plaintiffs upon filing the stipulation. The force of the stipulation was not spent when the first verdict and judgment was rendered. There are no words of limitation, and the contingency contemplated was the death of the plaintiff before the action should be finally determined. If the case had been tried at the February Circuit, and the plaintiff had then obtained a verdict, and it had been subsequently set aside, we cannot say that a new trial might not have been had, and another verdict and judgment obtained in his lifetime. The stipulation, by fair intendment and construction, was to continue in force until final judgment in the cause, although meanwhile a verdict and judgment should be rendered in the plaintiff’s favor, and be set aside. (Doe v. Bird, 7 C. & P., 6.)

It is claimed by the defendant that, conceding that the stipulation by its terms applies to the case, it was not one which the defendant’s counsel had power to make. It was admitted, on the trial, that the counsel who signed it had the same authority as the attorney of record, but it is denied that the attorney in the cause could, under his general retainer, bind his client by a stipulation that a cause of action which, under the general rule of law, abates on the death of the plaintiff, should, nevertheless, survive, or that the action might be continued after his death. The application to put the cause over the Circuit was within the general authority of the attorney, and it must be assumed that it was made in this case in the interest of the defendant. When the court required the stipulation to be given as a condition of granting the application, the counsel for the defendant had the alternative of proceeding with the trial or of complying with the condition. The corporation could only be present by its agents, and the counsel was necessarily called upon to decide which of the two courses open to him he would adopt. It must, I think, be true, as a general rule, that whatever conditions the court, in the ¡progress of an action, may lawfully impose in granting an application made in the usual course of the litigation in behalf of one of the parties, the attorney by whom the application is made may, to secure the advantage sought, consent to them, and bind his client thereby. It pertains to the procedure in the action, and it is a just implication that the authority of the attorney extends to the management of the cause" in all the- exigencies which arise during its progress. The attorney cannot compromise the claim of his client, or release the cause of action, or satisfy a judgment in his client’s favor without payment, in the absence of special authority. {Beers v. Hendrickson, 45 1ST. Y., 665 ; Barrett v. Third Ave. R. R. Co., id., 628.) There is no implication of an authority to do acts of this character from his appointment as attorney in the case; and a party dealing with him is bound to take notice that they are not within the scope of his authority. But in matters relating to the conduct of the cause his authority is very broad. (Denton v. Noyes, 6 J. R., 295; Gaillard v. Smart, 6 Cow., 385; Gorham v. Gale, 7 id., 739; Corning v. Southland, 3 Hill, 552; Gainsford v. Grammar, 2 Camp., 9.)

When the stipulation in question was given, there was an existing cause of action, but it was subject to the contingeney that it would be defeated by the death of the plaintiff before trial. The stipulation was designed to save it in ease the contingency happened. We are of opinion that, under the circumstances, the defendant’s counsel was authorized to make it, and that it is binding upon the defendant, and may he enforced, provided the court could lawfully exact it as a condition of postponing the trial.

In Ames v. Webbers (10 Wend., 576), which was an action in tort for an escape, the court, in putting off the trial of the cause on the application of the defendant, on account of the absence of a material witness, required the defendant’s counsel to stipulate, as a condition of granting the applicatiofi, that the action should not abate if the defendant should die before the next Circuit, it appearing that he was then afflicted with a mortal malady. After the defendant’s death, his representatives, as we infer, made a motion to be relieved from the stipulation, which was denied, Nelson, J., saying that the stipulation was correctly imposed. The suit proceeded to judgment against the deceased defendant (10 Wend., 624), and a writ of error brought thereon by his executors was quashed. (11 id., 186.) In Griffith v. Williams (1 Cromp. & Jer., 47), which was an action for breach of promise of marriage, the plaintiff had a verdict, and after a rule for a new trial was obtained the plaintiff died, and it was urged that the setting aside of the verdict would defeat justice, as no new trial could be had. But the court said that they had no difficulty on this ground, as they could impose the terms of the verdict (on the new trial), being entered as of the assizes, when the case was first tried, or of the defendant’s undertaking not to assign error. And in Palmer v. Cohen (2 B. & Ad., 966), where the plaintiff, who had recovered a verdict in an action, which was for libel, died, and judgment was entered therein after his death, o.n motion to set the judgment aside, the defendant’s counsel, on the argument of the motion, and in answer to a suggestion on the other side, said that the court could impose such terms as will, enable the parties to go to another trial, if necessary ; and Lord Tenterden, O. J., said : It might he done in an action of this kind as well as in a mere action of debt.”

These eases, we think, sufficiently establish the power of the court to annex the condition imposed in this case, and to make it effectual by allowing the case to proceed, after the death of the plaintiff, in his name, taking no notice' of that fact. The right of action, by the general rule of law, died with the person. The defendant, however, by express stipulation to prevent an immediate trial, agreed, in the presence of the court, that the plaintiff’s death before final judgment should not operate to extinguish the claim, and the court proceeded upon it in granting the postponement. There is a maxim in the law, of extensive application : Modus et conventio vincunt legem. It is subject, however, to the restriction that the court will not enforce an agreement of parties contrary to express statute, or in contravention of public policy. (Broom’s Leg. Max., 620 ; 22 N. Y., 249.) But the doctrine that a cause of action, ex delicto, does not survive, and that an action of that character abates on the death of the plaintiff, has been greatly changed, and its original rigor essentially modified by statute; and it cannot be said to have its foundation in natural right, nor can it now be regarded as resting upon considerations of public policy. In this State it has been very much relaxed, and the recent statute which gives a right of action to the personal representatives of a deceased person whose death was caused by the negligence of another, shows the tendency of modern legislation upon the subject.

If the plaintiffs had proceeded with the action in the name of their testator after his death, and obtained judgment, the-court would, I think, in view of the stipulation, have refused to set aside the judgment at the instance of the defendant. Is it an insuperable objection to the judgment here that the executors of the original plaintiff became parties to the record, and that objection was taken on the trial that the cause of action did not survive % I think not; and that the stipulation is a sufficient answer in this case, also. We are mot called upon to consider or decide whether a bare agreement of parties, not made in a pending litigation, or with the-sanction of the court, that an existing cause of action which abates on the death of one of the parties shall survive, can. be enforced.

The General Term reversed the judgment on the ground that the action abated, and denied a new trial. There were-other grounds upon which a new trial was claimed. The damages were alleged to be excessive, and there were exceptions taken by the defendant to rulings on the trial. These questions have not been passed upon, and we think the-proper disposition of the case would be to reverse the judgment of the General Term, and remit the cause to that court, for the consideration of the other questions in the case.

All concur; Allen, J., not voting.

Judgment reversed, and cause remitted to General Term.  