
    MARY A. JORDAN, as Administratrix, &c., Plaintiff and Appellant, v. THE NATIONAL SHOE AND LEATHER BANK, &c., Impleaded, &c., Defendant and Respondent.
    Before Curtis, Ch. J., and Freedman, J.
    
      Decided December 1, 1879.
    Plaintiff’s attorney also an appellant.
    I. Costs.
    
    1. Attorney, when diposed on personally.
    (a) NON-WITHDRAWAL OF MOTION IN SEASON.
    1. Where a motion has been properly noticed by plaintiff’s attorney, but prior to its hearing plaintiff’s costs are taxed, judgment is entered and paid, and a satisfaction piece given, by reason whereof the motion cannot be maintained, and it does not appear that plaintiff, after the payment of the judgment, directed the attorney to proceed with the motion, the non-withdrawal of the motion by the attorney upon the payment and satisfaction of the judgment, is cause for imposing on him personally, in the discretion of the court, the costs of opposing the motion.
    Appeal by plaintiff from an order denying a motion for an extra allowance, made on behalf of plaintiff, with §10 costs of motion, to be paid by the plaintiff’s attorney personally, and by plaintiff’s attorney, from so much of the order as charged him personally with costs.
    The facts appear in the opinion.
    
      Wellesley N. Gage, attorney, and S. D. Seward, of counsel, for appellants, urged:
    I. At common law, an attorney is held answerable to the summary jurisdiction of the court for every act of official misconduct (2 Greenl. Ev. § 147). An attorney can only be required to pay costs incurred by fraud or gross negligence. In the case at bar there was no fraud nor negligence, and none was charged.
    II. The plaintiff had a right to enter judgment without notice, and to demand payment thereof of the defendant instead of issuing execution, if she preferred to do so, and she was not obliged to give personal notice to defendant’s attorney. The plaintiff’s proceedings in entering judgment were in all respects regular (Code, § 1,228, Amendment of 1879). Whatever the plaintiff or her attorney did was a relief and benefit to the defendant, it obviated the hearing of the motion for an extra allowance on the merits, which allowance, had plaintiff not proceeded as she did, would, doubtlessly, have been granted. The defendant, by reason of the plaintiff’s acts, was saved the expense of the sheriff's fees on execution ; hence, all that the plaintiff did after making the motion inured to the benefit of the defendant. There are no grounds upon which the court is justified in imposing a fine upon the plaintiff’s attorney, and no act of the plaintiff or her attorney did, or was calculated to injure or prejudice the rights of the defendant, in the remotest degree.
    III. The plaintiff, on the adjourned day, was regular in stating to the court, through her attorney, what had been done, and to ask leave of the court to withdraw her motion. And under the circumstances it wrould seem she should be allowed to do so without terms. It has not been the practice, where a motion for an extra allowance has been made, to deny or grant the same with costs, and in Schwartz v. Poughkeepsie Mutual Fire Ins. Co. (10 How. Pr. 93), Brown, J., said, “costs of such motions have not, and should not, be allowed” (See, also, Dickson v. McElwain, 7 How. Pr. 139, 140). Ho previous notice of the plaintiff’s intention to withdraw the motion was necessary, and would have been of no avail. The application must be made to the court when the motion is called.
    IV. A party has a right to discontinue an action, and has the same right respecting a motion; the motion, therefore, should not be denied on the merits.
    V. An attorney cannot be subjected to fine or imprisonment, except for some misconduct as such (Code, §§ 14, 15). The case at bar does not present facts for which an attorney should be subjected to fine or imprisonment. The plaintiff, to prevent further delay in the entry and collection of the judgment, which, in any event, must be an injury to the estate she represents, chose to waive her right to an extra allowance rather than incur the risk and expense attendant upon such delay. This was her privilege, and, under the circumstances of this case, her obvious duty. The attorney should not be fined for following his client’s instructions, in protecting his legal rights in a lawful manner. The order appealed from states no ground for imposing the fine on plaintiff’s attorney (Matter of Kelly, 59 N. Y. 595; 62 Id. 198).
    
      Henry N. Beach, attorney, and of counsel, for respondent, submitted no points.
   By the Court.—Curtis, Ch. J.

This motion came on to be heard August 27, 1879 ; it was brought on by an order to show cause, granted August 22, 1879, returnable at one o’clock of that day, when, after stating the nature of the motion and that it was for an extra allowance, it was adjourned by the .court, on application of the defendant’s counsel, to August 27. Upon the last named day, it appearing that pending the adjournment the plaintiff had entered judgment, which had since been paid, the defendant’s counsel moved that the motion be denied, with costs against the plaintiff’s attorney personally, which was granted. In the statement of facts upon the appellant’s points it is mentioned that the plaintiff’s attorney, on August 27, asked leave of the court to withdraw the motion, but I fail to see that in the papers. The affidavit of the defendant’s attorney, which is not contradicted, alleges as follows:

‘1 That on the said 22d day of August inst., the plaintiff’s attorney taxed the costs of this action immediately after the said adjournment of said motion. That the said plaintiff’s attorney, the same day, without notice to deponent, entered judgment in favor of the plaintiff against the said bank, for debt and costs as taxed. That deponent is informed and believes, that said attorney for plaintiff, without notice to deponent, and without his knowledge of the entry of said judgment, took a transcript thereof to the president of said bank and demanded payment thereof; and by way of excusing his unprofessional conduct, represented that by its immediate payment to him the bank would save the sheriff’s fees, and thereby induced the said president, without any opportunity of consulting deponent, as counsel for said bank, to refer the matter to the cashier, with instructions to pay said judgment.
“That said cashier sent for deponent to consult him on the subject on the following day, the 23d inst., at the office of said bank, where he found the plaintiff’s attorney in waiting for payment of said judgment, and after examining the satisfaction piece, which was defectively acknowledged, the same having been re-acknowledged according to law, the said judgment was paid and satisfaction thereof delivered to said cashier of the bank, and the same has been discharged of record.”

It thus appears, that the defendants, after the final costs were adjusted, and after the payment of the judgment in full, and after the execution of the satisfaction piece, were compelled, without any counter. mand or withdrawal, to attend to oppose the motion for an allowance on August 27. This motion being in conflict with Rule 47 of the rules of the courts and the settled practice of the courts, could not be entertained, and was denied, with costs and disbursements to be paid by the plaintiff’s attorney personally.

The plaintiff herself, having been previously paid the judgment, and having executed a satisfaction piece, had no just right to direct the attorney who had represented her to bring on this motion for an allowance, and to argue it. Nor does it appear from the papers that she was then cognizant of such act, or authorized it. It was proper that provision should be made in the order for the payment of the defendant’s costs of attending and opposing the motion. The circumstances were such that even if there had been any liability on the part of the plaintiff to pay the costs, it was a proper exercise of the discretion of the court to direct their payment by the attorney. As the plaintiff’s relations to the litigation had ceased with the recovery and payment of the judgment and its satisfaction, there was nothing before the court on the present papers that disclosed any reason why she should pay, or be ordered to pay these costs, or that called for such an order. The person who, subsequently to the satisfaction of the judgment, claimed to act, or acted, as the plaintiff’s attorney, and brought on the motion, should, as between the two, more properly be called on to pay the costs of opposing, especially as he saw fit after this satisfaction and extinguishment of the judgment, to present such an application to the court.

The order appealed from should be affirmed, with costs.

Freedman, J., concurred.  