
    Ellsworth vs. Campbell and others.
    Where the act of an attorney, in appearing in an action without authority and suffering or confessing a judgment against a person who has not employed him, results in charging an innocent party with a débt which he does not owe, and in creating a lien which ihay deprive him of his property against his will, and without his fault, if is a wrongfúl act, and one which the courts are bound to redress.
    In such a case the party will not he compelled to seek his remedy against the attorney.
    The court will stay all proceedings upoh the judgment, hut it will preserve the lien which the plaintiff has acquired by his judgment, and give the defendant an opportunity to plead, if he has any plea to make, to the merits.
    APPEAL from an order made at a Special term, denying the applicatioh of the defendaht Campbell to set aside a judgment entered against him for the amount of a deficiency occurring on a sale of inortgaged premises, and for leave to him to come in arid defend the suit.
    
      John C. Dimmick, for the plaintiff.
    
      Butler, Evarts & Southmayd, for the defendant.
   By the Court, Brown, J.

Thié is an action commenced in July, 1853, to foreclose two mortgages, one of which is dated November 1st, 1846, and the other on the 10th day of May, 1847, made by the moving party, George W. Campbell, and one Horatio N. Eryatt, upon certain leasehold premises, with the buildings and machinery thereon, situate on the Wallah-bout road in the city of Brooklyn. No summons, process or papers of any kind, to appear in the action, were personally served upon the defendant Campbell. But Marvin & Prime, two of the attorneys of this court, upon the retainer of the defendant Eryatt, appeared both for him and Campbell, and received a copy of the complaint, which they omitted to answer. Judgment was taken in the usual form, and upon the usual affidavit, for want of an answer, for the foreclosure and sale of the mortgaged premises, and that the sheriff in his report of the sale should specify the amount of the deficiency, if any, and that the plaintiff should have judgment against George W. Campbell and Horatio N. Fryatt for such deficiency.

The judgment was executed by the sheriff of the county of Kings, and the mortgaged premises sold for the sum of $7000, and the deficiency reported by the sheriff was $4879.15, for which a personal judgment was entered and docketed against the defendants Campbell and Fryatt, in the office of the clerk of the county of Kings, on the 22d day of November, 1855. The defendants Campbell and Fryatt had been copartners in business under the name of Fryatt & Campbell, and were such when the mortgages were made. But afterwards, and before the execution of the deed of release to which I shall presently refer, the connection was dissolved and the copartnership ceased. On the 10th July, 1851, the defendant Campbell, in pursuance of the provisions of the act for the relief of partners and joint debtors, passed April 18,1838, made a separate compromise of the joint indebtedness of Fryatt & Campbell with certain creditors of the firm, including the plaintiff. Thereupon the plaintiff, in pursuance of such compromise, by an instrument bearing date July 10th, 1851, duly executed under his hand and seal, released and discharged the defendant Campbell from all debts, demands, claims and liabilities which the plaintiff had against him jointly with his late partner, Fryatt, and did also by the said written instrument covenant not to sue, implead or vex the defendant Campbell by reason of any such debts, claims or demandsi The defendant Fryatt had no authority or request of any kind from Campbell to employ Marvin & Prime, or any other attorney, to appear for him in the action, and whatever was done was entirely without the knowledge, assent or approbation of Campbell. He had no knowledge of the existence of the judgment against him until about the 1st of J une, 1857, when he discovered it in consequence of making a search for judgments in the clerk’s office. He thereupon applied to the plaintiff to release the judgment and to discharge his property from the lien thereof, which the plaintiff refused to do. He then made a motion at the special term for. an order vacating the judgment entered against him for the deficiency, which was denied, and hence this appeal.

As there is no dispute about the facts upon which the defendant Campbell claims to be relieved, the special term doubtless adopted and acted upon the" idea that the judgment was regular, and the remedy, if any, was against the' attorneys who compromised him without authority.' There are decisions in England and in some of the states of this confederacy, which hold that although the attorney has acted" without "authority, and entered the appearance of a party with bf without process having been served'upon him,' it is a good appearance, and the judgment and proceedings "regular, and the remedy of 'the'injured-'party is against the attorney, and'not by án application to the court to be relieved against'his acts ín'the" action itself." The rulé is said tó be subject to this modification, that if the attorney be insolvent" and" Unable to "respond tó the party injured, the "court"will set aside the judgment; for otherwise he has no remedy and might- be" "undone by that means. This qualification- of the rule ’shows that it" is vicious in principle. The act’off’an attorney' is either right and legal in itself, and then it should be upheld, or it is wrong and illegal, and should be set aside irrespective bf extrinsic matter." The ability or inability bf the attorney to féspoñd has nothing to do" with "the question'; for to leate' the-injured party without"-relief until he' should pursue and exhaust" his remedy against the attofney', might "in' many cases result in the destruction'of his fights and the loss of'his property: The act of -the attorney in appearing "in an action without authority, and suffering or confessing a judgment against a pérsóh who has not employed him, may "result, as in "the present case, in charging an innocent party with a debt which he does' not owe, and in creating a lien which may deprive him of "his property against his will and without 1ns fault. Itis therefore a' wrongful act-;"and one which the courts are bound’ to redress.' The law of this state has been administered by a class of men too conscientious and too enlightened not to feel the force of this view; for while recognizing the existence and force'of the rule as given iri sonie of the English authorities, they have modified it and qualified its application so as to disarmit of its most- offensive features. In Denton v. Noyes, (6 John. 296,) Chief Justice Kent says: This rule of law, though perfectly well settled, would oftentimes be unjust in its operation if it was not so -restrained as to save the party who may be affected’ by it from injury. -It was therefore wisely laid down by the king’s bench in the time of Lord Holt, (1 Salk. 88,) that if the attorney for the defendant be not responsible or perfectly competent-to'¡answer to his assumed client,-they, would relieve the party, against the judgment, for otherwise a defendant might'be undoné. I am willing to go still further, and in evéry Such case -to let the defendant in to a defense to the suit.” I am disposed, therefore, to prevent all! possible injury to the defendant, arid at the same time to save the plaintiff from harm. This can be done by preserving the lien which the plaintiffs have acquired by their judgment and giving the defendant an opportunity to plead, if he has any plea to make to the merits. The same course was adopted in the case of Grazebrook v. McCreedie, (9 Wend. 437,) which was an action against copartners, the process served upon one defendant onlyy who employed an attorney, and the latter gave a cognovit for both. So also in Blodget v. Conklin & Arnold, (9 How. Pr. Rep. 442,) which was a case against joint debtors and the summons served upon both, and a consent by an attorney employed by one of the defendants, that judgment be taken against both, an order was granted, allowing Conkling, one of the defendants, to answer and defend the action. Such must now be deemed the settled-practice of the court. - It will always afford adequate relief' to' a defendant, while at the samé time it protects a plaintiff who has obtained a judgment, as far " as "he can be protected, from some-of the injurious consequences to which he might be exposed by the delay.

[Kings General Term,

February 13, 1860.

The order made at the special term must he reversed, and an order entered staying all proceedings upon the judgment for the deficiency against the defendant George W. Campbell, until the further order of the court. Within twenty days after the service of a copy of the order to be entered hereon, the plaintiff shall deliver to the attorneys for the defendant Campbell a- copy of the complaint in this action, and to so much thereof as claims to recover from him any part of the mortgage debt he shall put in his answer within the usual time, and the issue thus formed shall then proceed to a determination in the usual manner. Ten dollars, the costs of the motion at the special term, and ten dollars, the costs of this appeal, are awarded to the defendant George W. Campbell, if he shall finally succeed in his defense. All other directions are reserved until the further order of the court.

Lott, Emott and Brown, Justices.]  