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Keywords

tortdefendantattorneymotionsustainedlegislative intent
tortplaintiffdefendantjurisdictionattorneystatutemotion

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Ohlquist v. Nordstrom, 143 Misc. 502, 257 N.Y.S. 711

Facts

Mabel Ohlquist brought an action against Chester A. Nordstrom and Hickman for injuries sustained, resulting in a judgment against both defendants. Hickman, having paid the judgment, moved to enter judgment against Nordstrom for his pro rata share. At the time of the motion, Nordstrom had moved to Pennsylvania, and Hickman served notice of the motion on Nordstrom and his attorneys in New York. Nordstrom contested the validity of the service, claiming it was a nullity due to his non-residency and the cessation of the attorney-client relationship.

The defendant Hickman has paid the judgment and now seeks to recover judgment against the defendant Nordstrom for one-half of the judgment.

Issue

The main legal issue is whether the service of notice of motion upon Nordstrom and his attorneys was valid under section 211–a of the Civil Practice Act, given Nordstrom's non-residency and the alleged termination of the attorney-client relationship.

He now appears specially and contends that the service of the notice of this motion is a nullity as to the service upon him personally because he is not within the jurisdiction of the courts of the state of New York and that the service upon the attorneys who represented him in the action is a nullity, for the reason that the relation of attorney and client ceased prior to the service of the notice of motion.

Rule

Section 211–a of the Civil Practice Act allows a joint tort-feasor who has paid a judgment to seek recovery from a co-defendant by motion on notice, even if the co-defendant is no longer a resident of the state.

The Legislature has, however, by this statute given relief from that illogical rule and provided that a joint tort-feasor who has been called upon by the plaintiff to pay the judgment may require his codefendant to pay his pro rata share.

Analysis

The court analyzed the legislative intent behind section 211–a, concluding that it was designed to provide a remedy for joint tort-feasors who had been unjustly burdened by having to pay the full judgment. The court held that the action continued for procedural purposes, allowing service of notice on the original attorneys to be valid, despite Nordstrom's non-residency. The court emphasized that the authority of the attorneys continued for the purpose of receiving notices related to the judgment.

The statute does not say that the notice of motion is to be served personally upon the codefendant because of the fact that his appearance in the action had ceased. A proper construction is that the action continues because there is something that remains to be done and the authority of the attorneys under the original appearance continues.

Conclusion

The court granted Hickman's motion for leave to enter judgment against Nordstrom for his pro rata share of the judgment, affirming the validity of the service of notice on Nordstrom's attorneys.

The court, therefore, arrives at the conclusion that the service of the notice of motion upon the attorneys for the defendant Nordstrom was sufficient under section 211–a of the Civil Practice Act, and the motion of the defendant Hickman for leave to enter judgment against the defendant Nordstrom is granted.

Who won?

Hickman prevailed in the case because the court found that the service of notice was valid under the Civil Practice Act, allowing him to recover from Nordstrom.

The court granted Hickman's motion for leave to enter judgment against Nordstrom for his pro rata share of the judgment, affirming the validity of the service of notice on Nordstrom's attorneys.

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