
    Michael Tito and Another, as administrators, etc., Plaintiffs, v. Charles B. Seabury, Defendant.
    (Supreme Court, New York Special Term,
    October, 1896.)
    1,. Administrators — Authorized-only to prosecute a claim — Satisfaction of judgment by their attorney.
    Where the attorney of administrators who have been appointed pur- , . . suant to section 2664 of the Code of Civil Procedure, and empowered merely to prosecute a claim for the negligent killing of an infant child, assumes to satisfy a judgment, recovered by the administrators, and - gives a release which is forged, upon the payment of a sum less than the amount named in the judgment, the satisfaction is void and does not affect the rights of the administrators.
    ,2.‘ Same — Estoppel.
    Where the complaint in such an action alleged generally that letters of administration were issued to the plaintiffs, and the trial was conducted upon the assumption that the letters were of that character. Held, that in view of the fact that- an attorney has a right to receive part payment upon a judgment, the defendant who had in good faith made a part payment to the attorney in satisfaction of the judgment, should be allowed the benefit of the payment as one made to that extent upon the judgment.
    Motion to vacate satisfaction of judgment.
    H. Finley and James F. Pearsall, for plaintiff.
    S. A. Van Wyck, for defendant.
   Pryor, J.

In an action by Tito and Caponigri, as administrators, they recovered a judgment of $1,053.62 against Seabury, for the negligent killing of Tito’s infant child. The letters of administration to Tito and Caponigri were issued pursuant to section 2664 of the Code, and empowered them only to prosecute the claim, but not to collect or compromise it. Nevertheless, upon receipt of $500 by their attorney, he assumed to enter satisfaction of the judgment; and this suit is to vacate that satisfaction. •Caponigri, refusing-to be a plaintiff, is made a defendant.

It is apparent upon the uncontroverted proof, that the attorney satisfied the judgment without other authority than his general retainer, and that the release he gave was a forgery. That independently of the restriction in the letters of' administration, the attorney had no power to compromise the claim, or to satisfy the judgment upon payment of less than the full amount, 'is concluded by authority. Lowman v. Elmira, etc., R. R. Co., 85 Hun, 188, 193; Lewis v. Woodruff, 15 How. 539, 542; Beers v. Hendrickson, 45 N. Y. 665; Barrett v. R. R. Co., id. 628, 635; Cox v. R. R. Co., 63 id. 419; Mandeville v. Reynolds, 68 id. 528; Clark v. Randall, 76 Am. Dec. 260-261, cases collected. It results, therefore, that the plaintiff’s, rights are not affected by the satisfaction, and that it must be vacated.

An attorney, however, may receive part payment upon a judgment; and such payment to him is payment to the client. Livingston v. Radcliff, 6 Barb. 201; Clark v. Randall, 76 Am. Dec. 259; 1 Am. & Eng. Ency. of Law, 955.

It is objected that as by the letters of administration the plaintiffs were forbidden to collect the judgment, their attorney was without -authority to receive the $500. But the allegation-in the complaint was of letters generally, and without qualification; on the trial the attorney for the plaintiff conveyed to the court and opposing counsel the,impression that such were the letters; upon that assurance,- counsel for the defendant forbore to call -for the production of the letters, and with the conviction so induced he paid the money. Parties to a litigation are bound by the statements and action of counsel in the conduct of a trial; and to gainsay them afterward were a manifest fraud and injustice. Under the .circumstances the defendant is not chargeable with notice of the limitation in the letters (Lowman v. R. R. Co., 85 Hun, 188, 194); he was misled as to the. nature. of the letters by plaintiff’s pleading and attorney, and the money Was paid in good faith, in reliance upon the apparent authority of the attorney to receive it. Upon every principle of justice plaintiff is estopped to deny that authority; and in equity, therefore, the judgment must be credited with the $500.

Judgment for plaintiff accordingly, but without costs.

Judgment for plaintiff, without costs.  