Opinion
Submitted December 7, 1883
Decided December 14, 1883
Blumenstiel Hirsch for appellants.
John F. McIntyre for respondent.
Upon this appeal the defendants must be held to the point on which they succeeded at the trial term. They then conceded that the arrest of the plaintiff was by virtue of an execution for which there was no authority in law, but had him turned out of court on the sole ground that there was no evidence showing that either of the defendants authorized the issuing of the execution or his arrest. The General Term were of opinion that a case was made out by the plaintiff, and we agree with that court. A party is bound by the acts of his attorney, although he does not give immediate direction as to the proceedings in an action, or is not with him at its successive stages. If he sets the attorney in motion he becomes liable as the cause progresses, and if the result is in his favor, is responsible for the methods resorted to for the enforcement of the judgments. This is well settled. ( Barker v. Braham, 3 Wils. 368; Poucher v. Blanchard, 86 N.Y. 256.) Here the retainer of the attorney was by these defendants, the issuing of the execution was within the scope of his implied authority, and the arrest of the judgment debtor was for the purpose of compelling payment. This was enough to make them liable. There was, however, evidence tending to show actual knowledge on the part of the defendants, and at any rate acquiescence by them in the course adopted by their attorney. The court erred in taking the question from the jury and in dismissing the case as one where no cause of action was made out.
The learned counsel for the appellants now argues that by the stipulation the plaintiff released his right of action. But this proposition was decided against the defendant by the trial judge as well as the General Term. It has no merit. The instrument on which he relies was executed by the plaintiff without consideration and while enduring an imprisonment, which was illegal. It was, therefore, void for duress ( Foshay v. Ferguson, 5 Hill, 154; Evans v. Begleys, 2 Wend. 243), and the defendants could acquire no right under it.
The General Term properly reversed the judgment and directed a new trial. Its order should be affirmed and, by reason of the defendant's stipulation, the plaintiff have judgment absolute.
All concur.
Order affirmed and judgment accordingly.