
    William Sperb, Jr., Resp’t, v. The Metropolitan Elevated R. Co., App’lt.
    
      (Supreme Court, General Term, First Department
    
    
      Filed June 26, 1890.)
    
    Discontinuance — Authority of attorney to settle action — Revocation of.
    Plaintiff authorized his attorney, in April, 1889, to settle the action on payment of $3,000, hut revoked such authority on the 19th of that month. On the 18th a stipulation for settlement was signed by defendant’s attorneys and sent to plaintiff’s attorney, who signed and returned the same, but the evidence as to when this was done was uncertain. Held, that the burden was not entirely on plaintiff to show that the stipulation was absolutely signed after withdrawal of the authority,and that as defendants have lost nothing by reason thereof, the appellate court would not interfere with an order vacating the stipulation.
    Appeal from order made at special term, setting aside a stipulation for the settlement of this action.
    
      Brainerd Tolies, for app’lt; Edwin M. Felt, for resp’t.
   Van Brunt, P. J.

A motion was originally made for this purpose at the special term, but upon the hearing the judge presiding not being willing to pass upon the conflicting statements made in the affidavits, a reference by consent was made to Stephen H. Olin, to take proofs and report the same, with his opinion thereon.

The referee, after hearing the parties and the proofs which they produced, reported that early in the month of April, 1889, the plaintiff authorized his attorney to settle this action with the defendants upon the receipt from them of the sum of $8,000, and that on the 19th of April the plaintiff, by notice in writing, revoked and annulled the said authority to settle the action; that an agreement for the settlement of the action was, on the 18th of April, 1889, signed by the defendant’s attorneys and delivered to the plaintiff’s attorney; but that the said agreement was not, on said day, signed by the plaintiff’s attorney and delivered to the defendant’s attorneys; that thereafter and after April 19, 1889, and after the said revocation of his authority to settle the action, the plaintiff’s attorney signed the said stipulation and delivered the same to the defendant’s attorneys.

Upon these facts the court vacated the stipulation, and from the order thereupon entered this appeal is taken.

It is claimed upon the part of the appellant that there is no evidence whatever to sustain the finding of' the referee that the stipulation was not signed by the plaintiff’s attorney until after the revocation of his authority.

The counsel for the respondent claims that as the sole question to be determined upon the motion was one of fact, and that as a full opportunity was offered to the defendants to produce their proofs before the referee, and that after doing so, both the referee and the judge at special term have concurred that the motion should be granted and the stipulation vacated, this court will not review the facts, and unless some error of law is found, it will affirm the order appealed from.

We think, however, that the learned counsel for the respondent is mistaken in respect to the duty of this court upon the hearing of this appeal. We think that it is bound to consider the evidence, and if, upon the whole case, it thinks that a different result should have been arrived at, it is its duty so to decide. There are no questions of law involved in this appeal, but simply a question of fact, and although the court in reviewing the facts should bear in mind the circumstance that the referee in examining the witnesses before him. had the benefit of their oral testimony, had the benefit of their demeanor upon the stand, in determining what credit should be given to their evidence, his findings thereon are not necessarily conclusive.

There is unfortunately in this case a degree of uncertainty in reference to certain material features which makes it somewhat embarrassing when the court considers the evidence taken before the referee as it appears in the record now presented.

There was from the evidence offered upon the part of the plaintiff a presumption created arising from the admissions of the attorney, sworn to by the plaintiff and his witness, and which evidently was believed by the referee, that the stipulation in question had not been signed by the attorney until after the revocation of his authority.

It is true upon his examination the attorney testified to a condition of affairs which is inconsistent with this idea, as, according to his testimony, the stipulation was signed immediately after Mr. Smith returned from his interview with the plaintiff a day or two before the revocation.

It is true that the attorney could not give the date upon which he claims this stipulation to have been signed. But we think that no great weight should be placed upon this fact, because if a date is fixed by testimony as to events it is equally as satisfactory as though the particular date had been given; because it is a familiar feature in respect to testimony that many persons cannot r jcollect dates, but whose recollection of events and the sequence of events is perfect

This testimony was entirely inconsistent with that given on behalf of the plaintiff, by the plaintiff himself and Mr. Thomas, who saw the plaintiff’s attorney subsequent to the revocation of the authority.

And we are equally unfortunate in the want of memory of the representative of the defendant’s attorneys who had charge of this matter. Their blotter shows that undoubtedly on the 18th of April a stipulation was signed for the settlement of this case. But by whom does not appear and it would seem to be probable that entry was made at the time the stipulation in question was, signed by the defendant’s attorneys and sent to the plaintiff’s attorney. This witness has no independent memory of the date when the exchange of stipulations took place. All that he could testify to after reading the entry was that he belived that on the 18th of April he exchanged written stipulations and that all that he recollected positively was that stipulations were exchanged.

It is true that certain letters from the plaintiff’s attorney to the plaintiff were sought to be proved, but there was no satisfactory evidence that they had ever been received by the plaintiff, so as in any way to invalidate the testimony which he gave before the referee.

It is urged upon the part of the appellant that there was a radical misconception of the issue before the referee and of the situation of the parties relative to the burden of proof. Upon this point we think there is also a misconception upon the part of the appellants. The right of the plaintiff to be relieved from this situation does not depend upon the strict rules of law. But in view of the fact that the defendants have lost nothing by reason of the stipulation being given, the court could relieve the plaintiff from the stipulation even after it had been given by his own act, if it was given unadvisedly and it would be inequitable to hold him to its terms. The burden therefore is not entirely upon the plaintiff to show that this stipulation was absolutely signed after the withdrawal of the authority. If there was grave doubt upon that subject the court would be justified in relieving the plaintiff from the situation, although he did not absolutely establish that it had been signed subsequent to the revocation of the authority.

Upon an examination of the evidence in this case we see no reason for interfering with the order of the court below, and it should be affirmed, with ten dollars costs and disbursements.

Brady and Daniels, JJ., concur.  