Patterson v. Powell.

parties. It was orally argued, and it was then the duty of the counsel for the defendant to advise his opponent and the court that he offered an affidavit in opposition to the motion. The argument of a motion presupposes the submission to the court of all the evidence upon which it is made or opposed, and counsel is entitled to know upon what proofs his opponent relies in order properly to present his side of the case upon the argument, and to apply for leave to present affidavits in reply where his opponent's papers are of a character to make such an application a proper one. In this view of the matter the affidavit in question was neither read nor used upon the motion, according to any proper conception of orderly practice, and the justice below was acting within his right in refusing to consider it in deciding the motion, as we must assume he did from his refusal to recite it in his order. The order appealed from was right, and should be affirmed.

Order affirmed, with $10 costs and disbursements.

PATTERSON v. POWELL.

[31 Misc. 250; 98 St. Rep. 43; 64 Supp. 43.]

(Supreme Court, Appellate Term. April 16, 1900.)

ATTORNEY AND CLIENT-NEGLIGENCE OF ATTORNEY IN CONDUCT OF CASELIABILITY TO CLIENT.

To a complaint for damages for the breach of an agreement not to be

NOTE. NEGLIGENCE OF ATTORNEYS.

a. What constitutes.

b. Remedies of client.

1. Action against attorney.

2. Defense and counterclaim to action by attorney for services.

3. Substitution of attorneys and denial of provision for payment for services.

c. Liability to third persons.

d. Damages.

a. What constitutes.

An attorney undertakes that he possesses the knowledge and skill com

performed within a year, which did not disclose whether the contract was oral or in writing, defendant's attorney pleaded a denial of the contract, under which answer, according to the practice recognized by the decisions of the state courts for over 50 years, the statute of frauds was available as a defense, if the evidence disclosed a contract within the statute. It was held in said action, however, by the court of appeals, contrary to the former decisions of the same court, that the statute of frauds, to be available as a defense, must be specially pleaded, and judgment went against the defendant because of the omission to make such plea. Held, that since such decision made a radical change in the system of pleading, which the attorney could not reasonably have anticipated, he was not guilty of negligence in the conduct of the defense.

Appeal from city court of New York, general term.

Action by Charles G. Patterson against Seneca D. Powell to recover for services rendered as an attorney. A counterclaim

NEGLIGENCE OF ATTORNEYS,-continued.

mon to members of his profession, and that he will exercise an ordinary and. reasonable degree of attention, prudence and skill in his client's business. Shearman & Redfield on Negligence, Vol. 2, § 558.

In other words an attorney is responsible to his client only for the want of ordinary care and skill and reasonable diligence.

Weeks on Attorneys, (2nd. Ed.) § 284.

Bowman v. Tallman, 3 Abb. Ct. App. Dec. 182 n.; 40 How. Pr. 1.

Byrnes v. Palmer, 18 App. Div. 1; 79 St. Rep. 479; 45 Supp. 479.

But if an attorney frankly acknowledge his want of experience or skill in a particular department, or his client learning of the same, entrusts his business to him, he will be liable only for gross negligence.

Shearman & Redfield on Negligence, Vol. 2, § 560.

The mere fact that his client was non-suited is not per se evidence of an attorney's negligence.

Gleason v. Clark, 9 Cow. 57.

And in gneral, the mere failure to succeed in an action is not prima facie evidence of negligence or want of proper skill.

Seymour v. Cagger, 13 Hun, 29.

If the attorney of a person, sued in an action for the foreclosure of a mortgage, was instructed not to defend the same, he will be chargeable with negligence, if he thereafter put in an answer but failed to appear on the trial, and judgment was taken and costs for unreasonably defending the ac tion imposed upon his client.

O'Hara v. Brophy, 24 How. Pr. 379.

was interposed by defendant for damages for plaintiff's negligent discharge of his duties. From a judgment for defendant upon his counterclaim, afirmed by general term (31 Misc. 20; 96 St. Rep. 1035; 62 Supp. 1035), plaintiff appeals. Reversed.

The opinion delivered by the general term of the city court of New York was as follows:

FITZSIMONS, C. J. In view of the decision of the court of appeals in the case of Porter v. Wormser, 94 N. Y. 431, which was decided prior to the drawing of the answer by plaintiff in Crane v. Powell, 139 N. Y. 379; 34 N. E. 911, and also the decision of the same court in Hamer v. Sidway, 124 N. Y. 538; 27 N. E. 256; 12 L. R. A. 463, decided subsequent to the service of said

NEGLIGENCE OF ATTORNEYS,-continued.

Erroneous judgment is not ground for claiming negligence on the part of an attorney, where he acted in good faith and employed reasonable skill and diligence.

Bowman v. Tallman, 27 How. Pr. 212; 2 Robt. 385, Aff'd 41 N. Y. 619; 3 Abb. Ct. App. Dec. 182n; 40 How. Pr. 1.

Avery v. Jacob, 15 Supp. 564.

Harriman v. Baird, 6 App. Div. 518; 39 Supp. 592.

Thus negligence cannot be attributed to an attorney, who advised and procured authority from the supreme court for a sale of premises devised to infants, which sale was subsequently adjudged void for want of power in the court to order it, after which the attorney abandoned the suit, and brought an action of partition which was effectual, where at the time of such sale the court of last resort was divided upon the question of the power of the court to authorize it.

Bowman v. Tallman, 27 How. Pr. 212; 2 Robt. 385, Aff'd 41 N. Y. 619; 3 Abb. Ct. App. Dec. 182n.; 40 How. Pr. 1.

It is not negligence for an attorney to sue several persons jointly on a claim which had been decided adversely to the plaintiff in a former action, where it appears that the former judgment is a bar in the second action as to one of the defendants only.

Avery v. Jacob, 15 Supp. 564.

And the fact that the bringing of the one action, instead of a separate action against each of the parties sued, operated on the minds of the jury injuriously to tle plaintiff does not warrant the claim of negligence.

Id.

Appellate Term.

[Apr. answer, but before the trial of said action, it was clearly the duty of plaintiff, as defendant's lawyer, to set up in said answer affirmatively the statute of frauds, as that was the defense he intended to rely upon, and which was not available because of his failure to allege it in the answer drawn and served by him as defendant's attorney in said action. His failure to do so was clearly a negligent act, and rendered all of the services rendered by him as such attorney valueless; besides, defendant, because of such negligence, had the right to recover from him all damages consequent upon such negligent act. In this case such damages, as the record shows, amounted to the sum of over $1,800, set up as a counterclaim herein.

In our judgment, the trial justice was right in dismissing the complaint, and directing judgment in defendant's favor upon the

NEGLIGENCE OF ATTORNEYS,-continued.

So an attorney does not guarantee the result of a litigation, and negligence that will defeat his right to compensation cannot be attributed to him merely because some other course of action would have resulted better than the one advised.

Harriman v. Baird, 6 App. Div. 518; 39 Supp. 592.

An attorney is guilty of negligence, who, being retained to procure a divorce, entered a judgment by default which was set aside with leave to the defendant to plead because of numerous irregularities and mistakes.

Van Wallhoffen v. Newcombe, 10 Hun, 236.

An attorney employed to institute proceedings to have a committee of a lunatic discharged and the latter's property restored to him is not guilty of negligence, although such proceedings are unsuccessful, where he acted in good faith and the court authorized the institution of the proceedings. Carter v. Beckwith, 128 N. Y. 312; 28 N. E. 582.

But an attorney cannot recover for services rendered in two actions brought against his client, to each of which he interposed the same counterclaim, where upon the trial of the first action he withdrew from the consideration of the referee all that part of the counterclaim exceeding the plaintiff's demand, which trial resulted in the latter's favor, and on the trial of the second action such attorney sought to prove the counterclaim, which he was not allowed to do, because of what had occurred in reference thereto before the referee.

Carter v. Tallcot, 36 Hun, 393.

In the case last cited it was further held that the resistence by counsel of the reference of the first action, which involved a long account, on the

counterclaim; and said judgment must be affirmed, with costs. All concur.

Argued before BEEKMAN, P. J., and GIEGERICH and O'GOR MAN, JJ.

Walter K. Barton (Henry Major, counsel), for appellant. Robert C. Taylor, for respondent.

O'GORMAN, J. This is an action brought by an attorney to recover for professional services rendered to the defendant in the case of Crane v. Powell, 139 N. Y. 379; 34 N. E. 911. The defendant rested his defense upon the plaintiff's alleged negligence in the discharge of the duties in question, and interposd a coun

NEGLIGENCE OF ATTORNEYS,-continued.

ground of unconstitionality, and the advising and taking of an appeal from the order of reference, which was affirmed by the general term, amounted to negligence, and precluded recovery for the services so rendered, and rendered counsel liable for the clients expense incurred thereby.

An attorney is negligent and liable to respond to his client for the damages sustained, where he advised a woman, whose husband had recently died leaving considerable property and a minor child, that an adult child could compel a partition of the real estate, when a statute then in force gave a widow the use and possession of all the real estate during the minority of the youngest child.

In re Estate of A. B., 1 Tuck. 247.

Want of professional skill cannot be claimed on the ground that an attorney tried a cause on a theory which is contrary to an alleged principle of law, where both the trial justice and the general term sustained the attorney's theory.

Avery v. Jacob, 15 Supp. 564.

Negligence cannot be attributed to an attorney for collecting a claim for towage of a vessel, by resorting to the seizure and sale thereof under Laws 1862, chap. 482, prior to such provision being declared unconstitutional. Poucher v. Blanchard, 13 Week. Dig. 5.

So an attorney cannot be charged with negligence for relying upon, and treating as correct, a decision of the highest court of his state, in advance of any decision upon the question by the Supreme Court of the United States.