Engle v. Fischer. a fraud in a manner that it concealed itself until such time as the party committing the fraud could plead the statute of limitations to protect it, is to make the law which was designed to prevent fraud the means by which it is made successful and secure. Bailey v. Glover, 21 Wall. (U. S.) 349, and see Poillon v. Lawrence, 77 N. Y. 211. C. E. Rushmore (W. & S. W. Fullerton, attorneys), for defendant-respondent. The defendant having been in this state when the cause of action accrued, and having remained in it until the commencement of this action, a period of ten years, the statute of limitations has run against the claim. . . . That fraud which it is claimed was practiced by the defendant in concealing himself by a change of name, does not prevent the running of the statute. That fraud or concealment on the part of the debtor does not prevent the running of the statute in actions at law, is well settled in this state. The rule in the United States courts as administered in Adams v. Stern, 29 Hun, 280, seems to be different so far as the concealment of a cause of action is concerned. Judge DAVIS in deciding that case, put it upon the ground that "under the established rules of the United States courts, the question of a fraudulent concealment was a proper one to be submitted to the jury." No case can be found in this state where concealment of the debtor operated to take the case out of the statute and the contrary is expressly held. Troup v. Smith, 20 Johns. 32; Allen v. Mille, 17 Wend. 202; Humbert v. The Rector, &c. of Trinity Church, 24 Wend. 587; Foot v. Farrington, 41 N. Y. 164. BY THE COURT.-VAN VORST, J.-The defendant, residing in Austria, in the month of May, 1873, in Engle v. Fischer. curred the obligation as acceptor of the draft which is the subject of this action. In July, 1873, the defendant absconded from Austria and came to the city of New York, and "for the purpose of concealing himself from his creditors assumed a fictitious name, and has ever since borne and been hiding under such fictitions name." The draft matured after the defendant took up his residence in New York. In April, 1882, the plaintiff, the owner of the draft, discovered defendant in the city of New York, living under his fictitious name, and demanded payment, which, being refused, he commenced this action. Upon the trial the plaintiff's complaint was dismissed upon the ground that the action not having been commenced within six years after the cause thereof accrued, the same is barred by the statute of limitations. The question arises whether the defendant was within the state during the period in question in the sense contemplated by the statute. It has been said that the statute of limitations "is a shield, and not a weapon of offense." I am quite sure that it was not designed to defeat justice. It should not shelter [] a man who, designing to defeat the vigilance of his creditors, comes into this state and conceals himself under a fictitious name, thus doing all in his power to prevent his creditors from reaching and prosecuting him within the time limited. In the construction of statutes the judge is vested with authority to disregard the letter in order, in a given case, to [] attain the ends of justice. This power has been repeatedly asserted and practiced upon the highest authority. (Lieber's Hermeneutics [3d ed.] notepage 285, and cases cited.) If this defendant is shielded by the strict letter of the statute, he is certainly not by its true spirit and intent. (Code, § 401.) Engle v. Fischer. In decisions with respect to the former statutes of limitations, the word "return," found in the section above cited, has been held to apply as well to a person coming from abroad, where he had resided, as to a citizen of this state going abroad for a time and then returning. (Fowler v. Hunt, 10 Johns. 464.) It has also been decided that the return must not be clandestine and with the intent to defraud creditors. The "return" must be public and under such circumstances as to give the creditors an opportunity, by the use of ordinary diligence and due means, to prosecute the debtor. (Cole v. Jessup, 10 N. Y. 96, 103; Randall v. Wilkins, 4 Denio, 577; Ford v. Babcock, 2 Sand. 518; Fowler v. Bailey, 3 Mass. 201; Little v. Blunt, 33 Id. 359.) A coming into this state with the design of continuing therein, concealed under a fictitious name to avoid the pursuit of creditors, is in legal effect no [] coming at all until the day that he is discovered. The construction contended for by the respondent would make this statute, which was designed to prevent fraud, "the means by which it is made successful and secure." The case of Poillon v. Lawrence (77 N. Y. 207), which arose under the bankrupt law, has some analogy. In that case the bankrupt contracted a debt in one name, and obtained a discharge under a different name, designedly omitting in his proceedings reference to any fact which would disclose that he was the same person who was the debtor to the plaintiff. RAPALLO, J., said: "It can hardly be supposed that any court would willingly sanction a fraud of that description." Practically this defendant perpetrated a fraud equally obnoxious. Contracting a debt in a foreign country under his true name, he then comes to [] this country and lives under an assumed name, in Woodford v. Rasbach. this way to conceal himself from his creditors. Under such circumstances he cannot claim the protection of the statute of limitations. Troup v. Smith (20 Johns. 32), and other cases cited by respondent's counsel, involve the question of a [] fraudulent concealment of the cause of action, but not of the person of the defendant; that is a wholly different question. The judgment below is reversed and a new trial ordered, with costs to abide the event. WOODFORD v. RASBACH. WOODFORD v. CHAPMAN ET AL. SUPREME COURT, OSWEGO COUNTY, SPECIAL TERM, FEBRUARY, 1884. §§ 1260, 3251. Attorney.-Power of to settle and discontinue action and satisfy judgment.-Effect of settlement of action and satisfaction of judgment.-Report of referee on motion. Although the opinion of a referee appointed on a motion is not conclusive to the court, it is entitled to respectful consideration.['] Where an action has been settled and discontinued, and a judgment satisfied of record by the attorney for the plaintiff therein without authority there seems to be no doubt as to the power of the court upon motion to set aside the discontinuance and satisfaction, and substitute another attorney in the place of said attorney. [2] The attorney of record in an action by virtue of his retainer as such without the consent of his client, and without any new authority from him, may discontinue an action before judgment, and after judgment may satisfy the judgment itself, at any time within two years after filing the judgment-roll, [] but he can only do the first in such a manner as shall dispose of the action, without affecting his client's right to bring a new action for the same cause; and the Woodford v. Rasbach. second only upon the actual payment in money of the full amount of the judgment. [*] Where a stipulation for the discontinuance of an action executed by the attorneys of record, and an order discontinuing the action entered upon it professed in terms to rest upon a settlement of the case,-Held, that they would, so long as they were allowed to stand, be a bar to any other action brought for the same cause. [5] Such a discontinuance and a certificate of the satisfaction of a judgment made on payment of a part only of the money due on the judg ment, are not within the power of the attorney of record to execute, unless upon some special authority given by the client.[*] A certificate of the satisfaction of a judgment upon the payment of part thereof and a stipulation that an action be discontinued, resting in terms upon a settlement, both executed by the attorney of record, are as effective to discharge the plaintiff's claims as would be releases under seal, executed by him and the authority to execute them should, therefore, be as distinctly shown as that to execute for another, any sealed instrument. [7] Motion by plaintiff to set aside a certificate of satisfaction of the judgment recovered in the first action and a stipulation and order discontinuing the second action, and for an order removing the plaintiff's attorney of record in each action. The first of the above entitled actions was begun in January, 1874, for malicious prosecution and false imprisonment. It was twice tried, at both of which the jury disagreed. A third trial in October, 1876, resulted in a verdict for the plaintiff for $9,890, which, upon a motion upon the judge's minutes, was set aside and a new trial ordered. On the fourth trial, June 14, 1879, the plaintiff had a verdict for $10,000. A motion for a new trial on the judge's minutes was denied, and on February 17, 1880, judgment was entered upon the verdict, including interest and costs for $11,566.17. An appeal to the general term was taken from the judgment which was pending June 11, 1881. The second action was begun about May, 1879, and originally |