
    THE TOWN OF DELHI, Respondent, v. JAMES H. GRAHAM, Appellant.
    
      Attorney — una/aihoriaed appem'a/nee of—When plaintiff’s proceedings stayed, on application of defendant.
    
    Plaintiff’s proceedings will not be stayed, on the application of the defendant, on the ground that the attorney had no authority to bring the action, except in cases in which there is an actual fraud on the court — where an attorney, without the knowledge or consent of the plaintiff, is using his name in a wrongful manner.
    Where an action is brought in the name of a town, and it appears that the pend-ency of the action was known to the inhabitants of the town, and had been reported to the town at a town meeting, without opposition or objection by any one, the plaintiff’s proceedings will not be stayed on the ground that the attorney had no authority to bring the action.
    Appeal from an order made at Special Term, suspending proceedings on the part of the plaintiff, on the ground that its attorney was not authorized to bring the action.
    
      Mr. F. Jacobs, Jr., for the appellant.
    
      Mr. Miles, for the respondent.
   Lbabnbd, P. J.:

The defendant moves to stay the plaintiff’s proceedings, on the ground that the attorney is not authorized to bring the action. The instances in which such relief is proper, are rare. They should probably be limited to those in which there is an actual fraud on the court; in which an attorney, without the knowledge or consent of a plaintiff, is using his name in a wrongful manner. Generally it is best that only the plaintiff himself should be allowed to complain that the action is without his authority, and that his silence on this point should be considered to give consent. There is an obvious reason why such a motion as this should be seldom granted. The plaintiff has no notice of it. For the very ground of the motion is, that the attorney for the plaintiff does not, in fact, lawfully represent him. And therefore, if the defendant’s view of the facts is correct, the notice of motion given to the plaintiff’s attorney, is no notice to the plaintiff. We are asked, therefore, to prevent a plaintiff from proceeding in an action, and.to do this without giving him or any one who represents him an opportunity, to be heard. The court would probably never do this in the case of a natural person plaintiff. But the defendant urges that the present is different from other cases, in that the plaintiff is a quasi municipal corporation. These facts however appear :■ The pendency of this action is known to the inhabitants of the town. It has been reported to the town at a town meeting, and no opposition or objection made. It cannot then be said that there is a fraudulent use of the name of the town. And it seems reasonable to suppose, that, if this action is conducted without the approbation of the town, the defendant or some other person would call a town meeting to direct its discontinuance. That would be a better remedy than this application. The defendant, however, insists that the authority to bring an action, can only be- given at an annual town meeting, or at a meeting specially called; and that an action commenced without such authority, cannot afterward be ratified. It is not best to decide that question of law, on an application which is addressed to our discretion. If the fact that this action was commenced without such authority, is a legal defense, then the defendant should have pleaded it (as in fact he did), and the matter should be tried at the circuit. If the fact is not a legal defense, but is only available on such a motion as this, then, in exercising our discretion, we should consider that the town has actual notice of this action and has not repudiated it.

We ought not to interfere, without its request, to protect it from the acts of an attorney whom it is implicitly recognizing. If the motion is for its protection, let it make it. If it is for the defendant’s benefit, let him make this defense, if it be a defense, at the trial.

There has been delay in moving. The cause was at issue and noticed for trial when proceedings were stayed for the purpose of making this motion. Yet the defendant had knowledge of the facts long before.

The order appealed from should be reversed, without costs.

Order reversed, without costs.

Present ■—• Learned, P. J., Boardman and James, JJ.  