ant acted in good faith in issuing the bonds in question, and, if they have made a mistake in including a small item of this kind in the total issue, it should be disregarded, as against such a holder of the bonds issued as plaintiff. It should rather be regarded as a mistake upon the part of the officers acting for and representing the defendant, with which the defendant should be charged, rather than a mistake or error so material and vital as to invalidate the entire issue of bonds.

2. The statute did require that the bonds issued by defendant should be sold at public auction, rather than that they should be passed to the society selling the property without sale. The provision of the statute with reference to a sale of said bonds at public auction was fully complied with. There is no question but what the sale was duly advertised, and but what it took place in due form, and Armstrong, who bid for the bonds, bid them off at such public auction. The sale was open to everybody, and anybody might have bid against him and secured the bonds. As he bid the full amount required by the statute,-par,-he secured the bonds. In view of the fact that they bore 3 per cent. interest, and of the year when they were sold, it will not be claimed that they sold at a disadvantageous price. Having passed this sale, we then find the vendor school society, through Armstrong, the purchaser of the bonds and the holder of the property to be sold, and find, upon the other hand, the defendant, the seller of the bonds and entitled to receive the purchase price of $18,000 therefor, and the purchaser of the school property in question, for which it was to pay $18,000. It is said that the passing of the money from Armstrong to the defendant for the bonds, and from the defendant to the society which Armstrong represented for the deed, was a mere form. Very possibly that was so. It would seem difficult to avoid having it more or less of a form. It was the right of the defendant to receive the money for the bonds. It was its duty immediately to pay it back to the person from whom it had been received for the deed, and receive the deed; and this was what was done. It is difficult to see how it could have been done much differently. It does not seem that it was necessary for the school society to take the $18,000 which it received from Armstrong, the purchaser of the bonds, and put it into the bank, and keep it there for a considerable length of time before using it, or to go to the trouble of taking $18,000 of other money with which to pay the school society for the deed. The main thing required by the statute, namely, a sale of these. bonds at public auction, at which anybody could bid, was substantially fulfilled; and, that having taken place, I fail to see any such vice in the manner in which the transaction was closed up as would invalidate these bonds.

3. I pass, now, to a consideration of the third defense above outined, the execution of a second set of bonds with which the first (outside of bond No. 1) were replaced. It seems to me a somewhat narrow and stringent rule to hold that the signing and execution of new bonds, under the circumstances of this case, was a new and independent act upon the part of the officers of the de

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fendant, and that their authority had been so exhausted by the execution and signing of the typewritten bonds that they could not legally execute the latter set. The second set of bonds is in substantially the same form as the typewritten ones. There is no claim that an excessive number has been issued, or that any additional obligations have been imposed upon the defendant, or that any substantial variation has been made in the terms or obligations of the bond. The facts simply show that the typewritten bonds practically were not marketable, and that the new ones were issued in the customary form in order to make them marketable. That was the sole object of the change, and that was all that was done; and it would seem to me that the officers of the defendant would have the right to do this, and execute this second set for the accommodation of the purchaser, and that it would not be such a new and independent act as would be lacking in authority, and that their powers were not so exhausted by the signing of the first set as would prevent them from doing it. Assume that after the typewritten bonds had been signed and executed and delivered to the purchaser, and while he was still in the room, some accident had happened to one of the bonds which so mutilated and destroyed it. as to render the bond useless. Would not the officers of the defendant have had the right to sit down and re-execute that bond, by giving him another one in the place of the one which had become destroyed? If, however, it be assumed that the defendant is right in its contention that the power of defendant's officers was exhausted by signing and executing typewritten bonds, I still think that the second set of bonds, issued in the place of said typewritter ones, were valid so far as plaintiff is concerned. I think the reasoning and decision in the case of Town of Solon v. Williamsburgh Sav. Bank, 114 N. Y. 122, 137, 21 N. E. 168, is decisive of this question in this case, and that, in view of the fact that the persons executing the bonds, of which plaintiff's is one, were in fact the officers and to a certain extent the representatives of the defendant; and in view of the fact that the necessary preliminary steps with which to clothe them with the authority to issue said bonds had been taken, and in view of the recitals in the bonds, and in view of the fact that the plaintiff is a bona fide purchaser, the bonds in question should be held good as against this defense. I, of course, do not lose sight of the fact that the case cited was an equity action brought by plaintiff to secure a cancellation of certain bonds. The fact, however, that the decision in that case proceeded very largely upon questions and issues of law, rather than principles of equity, is emphasized in the succeeding case of Williamsburgh Sav. Bank v. Town of Solon, 136 N. Y. 465, 32 N. E. 1058. And especially, upon this question under review, there is nothing in the action of the court in the case first cited to indicate that it was controlled by any principle of equity which would make its decision in that case inapplicable to the disposition of similar facts appearing in an action at law like the one at bar.

It is somewhat urged, in connection with this defense, that the original typewritten bonds are in the possession of the school so

ciety which sold the school house, and that there ought not to be a recovery in this action, to which that society is not a party, with these bonds outstanding. I have already referred somewhat to the facts upon this point, and I am not able to regard these original bonds as outstanding or in the slightest degree in any position to menace this defendant. For several years nothing whatever has been heard from them in the way of a claim. As appears by their production upon the trial of this case, they are so mutilated and canceled that nobody could possibly be deceived or misled by them. Many of them are by their terms past due. After they were so canceled and mutilated, they were delivered and surrendered to Alfred Dolge, the president of this defendant; and there is, in my judgment, no possibility of any one ever resorting to them as a claim against the defendant. In accordance with these views, judgment is ordered for the plaintiff, with costs. Judgment for plaintiff, with costs.

(35 Misc. Rep. 568.)

FARGO V. PAUL.

(Supreme Court, Special Term, Saratoga County. July, 1901.) ATTORNEY'S LIEN-FORFEITURE.

Where, after a verdict is obtained, and set aside on appeal, the attorney notifies his client that he will not continue the case unless a payment for his services is then made, he discharges himself on failure of his client to pay, and cannot prevent the substitution of another attorney whom his client subsequently retains, and who obtains a verdict, with costs, in order to enter judgment on the ground of his lien for costs, as by refusing to act he terminated the relation of attorney and client and forfeited his lien.

Action by James C. Fargo against George R. Paul. Motion for substitution of attorneys. Granted.

J. W. Shea, for the motion.

C. A. Kellogg, opposed.

HOUGHTON, J. Upon the first trial the jury rendered a verdict for the defendant. The trial judge set this verdict aside as against the weight of evidence. An appeal was taken by the defendant to the appellate division, and the order setting aside the verdict was sustained. George W. Fuller was attorney for the defendant, and Hon. Charles A. Kellogg had acted as counsel both upon the trial and upon the appeal. The new trial ordered by the trial judge having been sustained by the appellate division (67 N. Y. Supp. 1132), and the defendant's attorney and his counsel having paid out more money than they had received, they refused to act upon the second trial unless the defendant should pay something on account. The defendant promised to pay $200, was unable to raise it, or did not do so, and the defendant employed other counsel to try the cause, and the trial resulted in another verdict for the defendant. The costs of the two trials and of the appeal are therefore taxable against the plaintiff, and amount to a considerable sum. The defendant asks

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that the counsel who conducted the last trial be substituted as attorney in place of Mr. Fuller, for the purpose of entering judgment and taxing the costs. The former attorney for the defendant objects to this and refuses to sign stipulation. This is a motion for such substitution. I think it would be just and right that the former attorney and counsel should have a part of the costs to be taxed, and I would make the order conditioned upon that if I had the power so to do but, the former attorney having refused to act in the midst of the litigation, he discharged himself and thereby lost any lien for services which he may have had upon any judgment ultimately obtained. Halbert v. Gibbs, 16 App. Div. 126, 45 N. Y. Supp. 113; Tuck v. Manning, 53 Hun, 455, 6 N. Y. Supp. 140. If there had been a judg ment in his client's favor, the position of the attorney might have been different; but, at the time he withdrew from the case because of the nonpayment of money for services and disbursements, there was no judgment in favor of the defendant, and there was simply an action pending against him in which he (the defendant) had received a verdict, which was set aside. In order that any judgment should accrue in favor of the defendant, there must be another trial, and he must succeed. That has come to pass. When the defendant made arrangements with counsel who conducted the last trial, the papers show that he entered into an agreement with him that he should have all taxable costs and disbursements in case a judgment entitling him to take the same should be obtained. The cause was tried in May last. In the February preceding, Fuller wrote a letter to the defendant, saying that unless $200 was paid by the 20th of that month he should notify the attorney upon the other side that the connection of himself and counsel with the case was at an end, and that henceforth papers must be served upon the defendant himself, and the letter would be a notice, as well, that on that day, unless the money was paid, he would drop the case of the defendant. This was such an unqualified withdrawal from the case that it comes squarely within the cases above cited, and I think I am bound to grant the order without condition, and the former attorney must look to his client for such compensation as he may be entitled to. In the case of Tuck v. Manning, supra, the court says:

"Assuming, however, that the lien of an attorney would, under ordinary circumstances, attach to the final decision in such proceeding, it cannot now be claimed by him for he refused to do the act which would have rendered a judgment in his client's favor possible, and so waived the right to which he might otherwise have become entitled; and if, for services rendered before judgment, there was an inchoate right of lien, it was lost by his unqualified abandonment of the cause. In other words, he discharged himself, and in such a case it is clear that an attorney cannot leave his client in the middle of a matter, because he does not supply him with money, or by reason of any other difficulty, without running the risk of losing the benefit of that relation."

Of course, the attorney would have no lien upon the judgment which his client might obtain upon the matter in controversy, unless the relation of attorney and client existed.

For the reasons above given, and because I have no discretion in the matter, but am bound by the facts and the law applicable to them,

as I view it, the motion is granted, substituting J. W. Shea as attorney for the defendant, and George W. Fuller is ordered and directed to deliver to said Shea the papers necessary to form the judgment roll and for the ascertainment of costs, without any provision allowing said Fuller any pay therefor. Motion granted.

(35 Misc. Rep. 571.)

MCKAY V. MORRIS et al.

(Supreme Court, Special Term, Saratoga County. July, 1901.)

ATTORNEY'S LIEN-ENFORCEMENT.

Where plaintiff is responsible, and of his own motion consents to discontinue the action before trial, and without costs, his attorney cannot procure the order of discontinuance to be set aside merely because it made no provision for costs,

Action by Alexander McKay against Harold S. Morris and another. Motion by attorney for client to set aside an order granted on a stipulation because not providing for costs. Denied.

James F. Swanick, for plaintiff.

Kronfeld & Harris, for defendants.

HOUGHTON, J. The plaintiff brought action against the defendant, through James F. Swanick, his attorney. Subsequently McKay settled with the defendants, and signed a stipulation discontinuing the action, without costs. The attorney, in his own behalf, makes a motion to set aside the order granted on that stipulation, on the ground that it did not provide for his costs. The action had never been tried, issue having only been joined at the time of the settlement.

While the order discontinuing the action may have been irregular, because the plaintiff's attorney had not signed the same, yet I do not think it can now be set aside, on motion of the attorney alone, under the facts here existing. The attorney had a lien upon the cause of action of his client, but there is no evidence that the release and settlement was in fraud of the attorney, or that the settlement would deprive him of his costs, because his client is entirely responsible. The lien which the law gives the attorney is simply for his protection, and when the courts allow an action to be prosecuted for the purpose of the attorney securing his costs, it is because the client is irresponsible, and there is no other manner in which the attorney can be protected in the lien which he had. Roberts v. Doty, 31 Hun, 128; Quinlan v. Birge, 43 Hun, 483; Poole v. Belcha, 131 N. Y. 200, 30 N. E. 53. No such state of facts are shown by the papers on this motion as requires the intervention of the court to protect the plaintiff's attorney for the services which he may have rendered to the plaintiff, because the plaintiff is responsible, and there is no evidence that the settlement was made collusively for the purpose of defrauding the attorney of his compensation. The motion must be denied, but, under the circumstances, without costs.

Motion denied, without costs.