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Clarkson v. Kelly

Decided: February 6, 1958.

MARY CLARKSON, PLAINTIFF-APPELLANT,
v.
JOHN R. KELLY AND ELSIE M. KELLY, DEFENDANTS-RESPONDENTS



Clapp, Jayne and Schettino. The opinion of the court was delivered by Schettino, J.A.D.

Schettino

Plaintiff appeals from a judgment of the Chancery Division, Superior Court, vacating an order of voluntary dismissal without prejudice, entering a judgment of $1,000 less costs in favor of defendant based upon an alleged settlement of the cause of action and vacating a writ of attachment.

Plaintiff's action was upon a contract in the sale of certain airplane parts, for an accounting by the defendant agent, John R. Kelly, for damages arising from the breach of a fiduciary duty, and to set aside a fraudulent conveyance from defendant-husband to defendant-wife. The trial was set for May 23, 1957. The day before, plaintiff's attorney appeared before the trial judge assigned to the case, requested permission for a voluntary dismissal or for an adjournment of the trial on the ground that one of the witnesses, a

former attorney of defendant-husband, was engaged elsewhere in a criminal case and could not be present to testify. The trial judge refused to pass upon the request at that time, stating that the request would be decided on day of trial.

Plaintiff's attorney negotiated that evening with defendants' attorney and finally agreed upon a settlement of $1,000, a sum admittedly acceptable to their respective clients. The attorneys agreed to appear before the trial court on May 23, 1957 and put the settlement on the record. Plaintiff's attorney, upon his appearance in court, stated that late in the previous evening he suffered a change of heart and decided that such a settlement would be improvident for his client, that he could not in conscience permit her to accept it, and that about 8:00 A.M. that day he advised defendants' attorney of his change of heart. He then moved for a voluntary dismissal without prejudice. His reasons on argument were that:

"I felt the reason I was entering into a settlement was that I was forced into it because either I had to go on today or have it dismissed with prejudice. * * *

In my own mind I do not feel the settlement now under the terms offered would be fair. The reason I went into the settlement is that I feel that I am more or less a victim of a system. I was being forced on a case I am not ready to try because one of my witnesses is not ready to testify for me. And I do not feel I should subpoena an attorney. * * * In fairness to my client I cannot settle the case. I feel, I felt that either I had to settle the case as offered or have the case dismissed with prejudice. I had no choice. * * *

I know the Court's position. But it just doesn't seem right to me. Where the Judges are being rushed and where the attorneys are being rushed and the consequences are that you have to take unjust settlements.

I came all the way up this morning but I feel it is unfair to my client. I do not want to find myself out on the street."

Plaintiff's attorney also stated that he intended to file immediately another attachment suit for the same cause of action if his application for a voluntary dismissal would be granted.

Defendants' attorney objected to the application pointing out that the attorneys, at most:

"were at the beginning about $750 apart and then we were about $500 apart and then $300 apart and finally yesterday we ...


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