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New York Supplement



New York State Reporter,


(90 App. Div. 432.)


(Supreme Court, Appellate Division, Fourth Department. January 26, 1904.)


A court, in granting a motion to permit parties to intervene as defendants, has no authority to require them to appear and defend through the attorney employed by the original defendant.


On appeal, in an action by a school-teacher for wages, from that portion of an order which, as a condition of allowing parties to intervene on the ground of collusion between plaintiff and defendant, required the interveners to defend through the attorney employed by the defendant, that portion of the order will be reversed, and the remainder affirmed on condition that the interveners stipulate not to tax costs against plaintiff; otherwise the entire order will be reversed.

McLennan, P. J., and Stover, J., dissenting in part.

Appeal from Special Term, Livingston County.

Action by Nora O'Connor against Patrick Hendrick, sole trustee of School District No. 9, town of Lima, and Charles D. Miner and others. From that portion of an order requiring defendants Miner and others to appear and defend through the attorney employed by defendant Hendrick, defendants Miner and others appeal. Reversed. Argued before MCLENNAN, P. J., and SPRING, WILLIAMS, HISCOCK, and STOVER, JJ.

Albert H. Stearns, for appellants.

Fletcher C. Peck, for respondent Hendrick.

Timothy J. Nighan, for respondent O'Connor.

86 N.Y.S.-1

and 120 New York State Reporter

HISCOCK, J. We think that the portion of the order imposing the condition above mentioned and appealed from was erroneous. This action was brought by plaintiff to recover for services claimed to have been rendered both by herself and by another, who assigned to her, as school-teachers in the public schools of District No. 9 of the town of Lima. The appellants made a motion to be allowed to intervene and become parties defendant in the action, under the provision of section 452 of the Code of Civil Procedure, upon the grounds, in substance, that they were the owners of real property within said school district which would be affected in case judgment was recovered by the plaintiff, and that the plaintiff and defendant trustee were so acting, collusively that the latter would not properly and in good faith defend this action and protect the interests of the appellants. As appears by the recitals in the order made upon said motion, no opposition whatever was offered by the plaintiff thereto. The defendant trustee did appear, and through his present attorney opposed the granting of said motion. The motion was, however, after due consideration, granted, but upon the condition already referred to. We do not feel that the original underlying question of the right of defendants to be made parties to this action is before us upon this appeal. As already stated, the plaintiff did not, upon the motion, oppose said application, and the learned counsel for the respondent trustee has not, as it seems to us, questioned in his brief the right of the appellants to be made parties, if the court at Special Term, in the exercise of its discretion, deemed it proper to make them such. Moreover, no appeal has been taken from that portion of the order bringing them in. Assuming, therefore, as we must, under these conditions, that the appellants have been properly and rightfully made parties, we simply have before us the query whether it was proper to impose upon them, as a condition of coming in, that they should employ the attorney. for the respondent trustee, whose acts and conduct they are criticising and accusing. We think it very clear that we must answer this question in the negative, and assert the law to be that such condition should not have been imposed. Jemmison v. Kennedy, 55 Hun, 47, 7 N. Y. Supp. 296. Courts have very uniformly and steadfastly secured to clients the right, under all reasonable conditions, to select and change at will their attorneys; and this rule has been deemed essential to the preservation of those confidential relations which ought to prevail between counsel and client. Tenney v. Berger, 93 N. Y. 524, 45 Am. Rep. 263; In re Paschal, 10 Wall. 483, 19 L. Ed. 992; Dodin v. Huerstel, 85 Hun, 257, 32 N. Y. Supp. 1013. But, while no such argument is addressed to us by the briefs of the counsel for the respondents, it is nevertheless suggested that, reaching the conclusion above indicated as to the condition imposed, we still ought not to reverse the order in this respect, and leave it otherwise standing and in force; that the respondents may have been willing to accept, and therefore not appeal from, the order as a whole, and containing the condition already referred to; and that, this being so, it will be unfair and inequitable to leave them without remedy as against the order when modified by striking out said portion thereof. Answering this suggestion, it seems to us that, in the first place, it may

be said that respondents received ample warning that this very result might happen. The notice of appeal served by appellants pointed specifically to this provision and portion of the order as the one, and the only one, of which they would endeavor to secure a reversal, and respondents therefore might very properly assume that, in the absence. of any appeal by them from other portions of the order, the precise result might follow which now seems imminent. We prefer, however, not to dispose of the suggestions made and now under consideration upon this ground alone, but to measure our proposed action by the test of fairness and justice to the respondents who have not appealed, and who will find themselves governed by a modified form of the original order. We do not see how, under the circumstances of this case, such result is to be either unjust to them or burdensome upon them. Upon the other hand, we think that it will be entirely beneficial to and proper for all the parties interested.

As already suggested, this action is brought by plaintiff to recover for services alleged to have been performed in teaching in the public schools in the town of Lima. In opposition to her right to recover it is urged that she and her assignor have violated those rules of the Department of Public Education of this state, which rest upon the provisions of the Constitution itself, and forbid that teachers in public schools shall wear any distinctive or distinguishing dress denoting membership in any religious order to which they belong, and that they shall not seek to utilize their position as teachers to press and urge upon the minds of children under their care the religious tenets and doctrine of any sect. It is said that plaintiff and her assignor, while engaged in the pursuit of their duties as teachers, wore the distinctive and distinguishing dress of the religious order of sisterhood known as the "Sisters of St. Joseph," to which they belonged, and that before and after school hours, while performing their said duties, they taught the religious principles and doctrines of their order. It is asserted that these acts, especially when viewed in the light of various rulings and orders made by the Superintendent of Public Instruction, furnish a defense to the claim in suit. Appellants, then, by their affidavits, vigorously and pointedly attack the attitude of the defendant trustee in this controversy, which has apparently been running some time. They accuse him, through the allegation of specific acts, of an indifference, if not hostility, to the principle that our public schools shall not be subjected by any sect to religious domination, and which, in effect, has been safeguarded by our Constitution. It is true that the trustee endeavors to repel these accusations. But his answer, characterized especially by professions of good intentions, and by forgetfulness of various alleged acts impugning such intentions, does not impress us as indicative of any purpose upon his part to aggressively defend those principles above referred to if this case presents the necessity for so doing. In fairness it is to be noted that no attack is made by appellants upon either the ability or good faith of the attorney who represents him, and who, against their will, has been selected for them by the court. We feel confident that none such could be made. But it is apparent that such attorney must necessarily be more or less subject to the will and control of his first

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