Upon their motion in the court below, and upon this appeal, the defendants contend that counsel had a right to refuse to go on with the case, because, by reason of the discussion before the court directed a mistrial, he had come to believe that his clients' rights would be prejudiced by the attitude of the trial judge. If the defendants' claim to a new trial depended upon the validity of this conclusion, I should unhesitatingly vote to affirm the order of the court below. Attorneys have a duty to their clients to vigilantly protect their rights, but no attorney and no litigant has a right to choose the judge before whom he is willing to litigate his cause. The law guarantees to each litigant a fair trial. Every remark of a trial judge in a jury trial, if excepted to, must, under the law, be recorded; and if by reason of such remark there is fair ground for the belief that the litigant's rights have been prejudiced, either the trial court or the appellate court will set aside the judgment.

In this case, although the trial justice had himself called the original trial a mistrial in order to prevent the possibility of prejudice arising from his remarks to counsel in the presence of the jury, yet counsel presumed to refuse to proceed before the same justice and a new jury upon the alleged ground that he feared that his clients' rights, and even his own rights, might be severely prejudiced. The attorney is an officer of the court, and as such has a duty to perform at a trial hardly less important or dignified than the duty of the presiding judge. He does not, however, perform these duties or protect his dignity as an officer of the court when he refuses, for any reason, to proceed in a case properly brought before a judge of the court empowered by law to preside at the trial. Only by taking part in the trial and protecting his clients' rights by proper motions and exceptions can the attorney perform his duties and aid in the fair and orderly administration of justice, and the law provides full and complete means by which a fair administration of justice can always be obtained. The personal dignity of the judge is not involved in the refusal of an attorney to appear before him, but the dignity of the court demands that every case be tried by the judge before whom it is brought. The attorney himself is bound to vindicate the dignity of the law and of the courts established to administer the law by insisting upon his rights in an orderly and proper manner, and should the trial court not, in his opinion, afford him a fair opportunity to present his case before the jury, by presenting to the appellate tribunal for review a record of the proceedings.

It follows that, where an attorney refuses to proceed before a judge having the right to hear a case, he has been afforded his day in court, and cannot, therefore, claim that he should be afforded another opportunity to present his case. So long as the client is represented by the attorney, his refusal to proceed is binding upon his client in exactly the same manner as any other act of the attorney at the trial. Sutter v. City of New York, 106 App. Div. 129, 94 N. Y. Supp. 515.

[3] There is no doubt, however, that the relationship of attorney and client may be terminated at any time by either party. When, therefore. before the trial begins, the attorney insists upon withdrawing from the case, the client is left without a representative to present his case.

When that occurs, the acts of the attorney are not performed under the authority vested in him by virtue of his relationship to his client, but are acts performed in repudiation of that authority and relationship. It follows that in such a case the client is in default, not because he refuses through his representative to proceed, but because his representative refuses to proceed for him, and in that manner the client has been deprived of his day in court. In the case before us the attorney did actually state that he wished to withdraw from the case, and, even though that withdrawal may be regarded as founded upon improper grounds, it left the defendants without an attorney who could present their case at the trial. The default thus suffered is a default which the court has power in its discretion to open in a proper case and upon proper terms; but a new trial should be granted only where the attorney is actually out of the case, and upon the substitution of another attorney.

The order denying the motion to open the default is therefore reversed, without costs, and the motion is granted, provided that the defendants within ten days secure an order of substitution and pay to plaintiffs the sum of $30 costs and any disbursements incurred on the appeal; the plaintiffs to be permitted to retain the moneys heretofore paid as security for any judgment that they may obtain; otherwise, order is affirmed, with $10 costs. All concur.

WILLIAM S. MERRELL CHEMICAL CO. v. ROOT et al

(City Court of New York, Trial Term. May, 1915.)

BILLS AND NOTES 396-INDORSEMENT-NOTICE OF NONPAYMENT-NECESSITY -STATUTE.

Under Negotiable Instruments Law (Consol. Laws, c. 38) § 167, making notice of dishonor necessary to charge an indorser, which notice may be merely oral and given in any terms sufficiently identifying the instrument and indicating its dishonor by nonpayment, formal written notice of dishonor was not required to charge as indorser one who, as assistant treasurer of a corporation, signed its note as such, and indorsed it, and delivered it, and who signed all the checks of the corporation, so that the note could not be paid without his own act and knowledge.

[Ed. Note. For other cases, see Bills and Notes, Cent. Dig. §§ 1022– 1028; Dec. Dig. 396.]

Action by the William S. Merrell Chemical Company against Marshall J. Root and Charles B. Van Nostrand. Judgment for plaintiff, and defendant Van Nostrand moves for new trial. Motion denied. Campbell & Scribner, of New York City, for plaintiff.

Zabriskie, Murray, Sage & Kerr, of New York City, for defendant Van Nostrand.

FINELITE, J. This action was brought to recover the sum of $700 on the following facts: The plaintiff is a toreign corporation created under the laws of the state of Ohio, and on or about March 25, 1915, the Root-Knight Company, a foreign corporation created under the laws of the state of Delaware, made and delivered to the For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

plaintiff its promissory note, in writing, of which the following is a copy: $700.

New York, March 25, 1915. April 7, 1915. After date we promise to pay to the order of William S. Merrall Chemical Company seven hundred dollars at 22 East 22d street, New York City. Value received. Root-Knight Company, Inc.,

No. 156. Due 4-7-15.

By M. J. Root, President.

Charles B. Van Nostrand, Asst. Treasurer.

Prior to delivery of the said note to the plaintiff, the defendant Van Nostrand indorsed the said note and joined with the Root-Knight Company, Incorporated, in delivering the same to the plaintiff, who is now the owner and holder thereof. At maturity the said note was duly presented for payment. Payment was then and there demanded, but the note was not paid. The defendants were the officers of the said Root-Knight Company, Incorporated. The defendant Charles B. Van Nostrand admits that he indorsed the note in question. The action is against the said indorser.

The defendant Van Nostrand defends the suit upon the ground that he did not receive notice of presentment and dishonor. It appears that the note was presented for payment shortly before noon on April 7th by a messenger of the First National Bank, by exhibiting it to the bookkeeper of the defendant and demanding payment, and leaving a notice in writing as follows:

First National Bank, Broadway and Wall Street.

New York, April 7, 1915.

To Root-Knight Co.: Your note on you for $700.00 has been presented for payment and will be detained at this bank until 3 o'clock p. m. to-day. Messengers have no authority to promise that drafts will be held longer. Route No. 12, by M. (Certified check required.)

The bookkeeper placed this notice on the desk of the defendant Van Nostrand, the assistant treasurer and financial officer of the company, and called his attention to it upon his return to the office at 4:30 p. m. This notice was produced by the defendant upon the trial of this action. It also appears that all checks of the defendant were required to be signed both by Mr. Van Nostrand, as assistant treasurer, and by Mr. Root, as president. The notice of presentment was in writing as above, but the notice of nonpayment was not in writing. Mr. Van Nostrand knew that the note was not paid, because it was his business as financial officer of the company to know that, and it could not be paid without his signature to the check. From his testimony it appears that he did not deny that he had actual knowledge of its dishonor, but merely that formal notice of it was not given to him. Therefore the only question to be decided here is whether the lack of such formal written notice is fatal.

Section 167 of the Negotiable Instruments Law reads as follows: "The notice may be in writing or merely oral, and may be given in any terms which sufficiently identify the instrument, and indicate that it has been dishonored by nonacceptance or nonpayment."

The respective counsel cite the case of O'Bannon Co. v. Curran, 129 App. Div. 90, 113 N. Y. Supp. 359, on the question of notice of

152 N.Y.S.-24

dishonor and presentment, which case seems to be sufficient as an authority to uphold the contention of the plaintiff. In that case the indorser was the president of the maker, a corporation which was put into bankruptcy with the co-operation of the president himself. The indorser contended that there was no cause of action against him, because it did not appear that the notes were presented for payment and notice of nonpayment given to him. The court held that he was nevertheless chargeable, saying:

"As an individual he knew when the notes fell due that the corporation could not pay them, because it had been adjudicated a bankrupt and all of its property was in the hands of a receiver in the bankruptcy proceedings, in which he participated. Under such circumstances the defendant must De deemed to have waived, at least impliedly, within the meaning of the sections of the Negotiable Instruments Law above referred to, presentment of the notes and notice of dishonor. By his consent and with his co-operation it had been rendered impossible for the maker to pay-all of its property being then in custodia legis. When the notes in question fell due the maker could not pay; the indorser knew it, because he had participated in the act which made it impossible for it to pay, and for that reason a failure to present the notes for payment and give him notice of nonpayment could not by any possibility have injured him."

True, the Root-Knight Company was not in bankruptcy at the time that this note was presented, but the reasoning of the case is that the presentment and notice are unnecessary when the indorser. because of his own act, knew that the note could not be paid without his act as assistant treasurer, and as an individual he knew when the note fell due that the corporation did not pay it. Notice of dishonor was not required, because Mr. Van Nostrand was the person to whom the instrument was presented for payment, and this exception was inserted to avoid the necessity of giving notice of a fact, which by the terms of the exception must be within the personal knowledge of the man notified. In re Swift (D. C.) 106 Fed. 65. I have examined the authorities cited upon the defendant's brief and fail to see where they are applicable to the question involved here.

The motion for a new trial must therefore be denied, with exception to the defendant, and 10 days' stay and 30 days to make a case. Settle order on one day's notice.

GUCKER v. KOPP et al. (No. 7418.)

(Supreme Court, Appellate Division, First Department. June 4, 1915.) DOWER 95-INCHOATE INTEREST-JUDGMENT IN PARTITION SUIT.

Where judgment for plaintiff was entered in partition, in which a wife of a party declined to accept a gross sum in lieu of her inchoate right of dower, and an amount was deposited in court to protect such right, and on her husband's death the wife applied for an award of a gross sum, the motion should have been granted; her right to a gross sum by way of admeasurement having become absolute, standing unaffected by her former refusal.

[Ed. Note. For other cases, see Dower, Cent. Dig. § 340; Dec. Dig. 95.]

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

Appeal from Special Term, New York County.

Action for partition by Louise Gucker against Anna Kopp, impleaded with others. From an order denying Anna Kopp's application to have a gross sum assigned to her for dower, she appeals. Order reversed, and motion granted.

Argued before INGRAHAM, P. J., and CLARKE, SCOTT, DOWLING, and HOTCHKISS, JJ.

Henry M. Flateau, of New York City, for appellant.

John J. Curtin, of New York City, for respondents.

SCOTT, J. On February 5, 1906, a judgment was entered in a partition action in which the appellant, Anna Kopp, and her husband, were parties; the latter being seised of an undivided interest in the real property partitioned. At that time appellant declined to accept a gross sum in lieu of her then inchoate right of dower, and the sum of $24,371.94 was deposited in court to protect said inchoate right. The judgment contained the customary provision that any party to the action might at any time thereafter "apply to the court for further direction, judgment, or order in the premises." The husband is now dead, and appellant's right to dower has become consummate. She now applies for an order that a gross sum be awarded to her in lieu of her dower right.

We think that the motion should have been granted. The fact that she declined a gross sum in lieu of her inchoate right is no reason why her present application should be denied. The fund stands in the place of the land, and her right to a gross sum by way of admeasurement has become absolute.

Order appealed from reversed, with $10 costs and disbursements, and motion granted. Order filed. All concur.

CONNELLY v. FISH et al.

(Supreme Court, Trial and Special Term, Chemung County.)

1. BOUNDARIES 8-DESCRIPTION-EVIDENCE.

A deed conveying a vacant lot described it as bounded by beginning at a point in the east line of a street at the southwesterly corner of the grantor's brick building; thence along the building and including one-half of the wall thereof; thence on a line parallel with the street, 25%1⁄2 feet, more or less, to an iron wall; thence westerly on a line parallel with the brick building and 25% feet or thereabouts distant therefrom; thence northerly along the street 25% feet or thereabouts. The grantee, before purchasing, made measurements, and his measurements were 25% feet as designated in the deed when measured from the center of the wall of the brick building. When the grantee excavated for the purpose of building, he found a stone monument in line with the center of the wall of the brick building. He subsequently used the wall as a party wall. Held, that the deed conveyed to the center of the wall.

[Ed. Note.-For other cases, see Boundaries, Cent. Dig. §§ 66-76; Dec. Dig. 8.]

2. PARTY WALLS 5-STRUCTURES CONSTITUTING PARTY WALLS-RIGHTS OF PARTIES.

Where a deed conveyed to the grantee to the center of a wall of a building of the grantor, and the parties treated the wall as a party wall. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes