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Appellate Term.

[Apr.

inalpractice when his professional conduct is vindicated by the judgment of distinguished jurists of large experience and high attainments, two of them members of the very bench that pronounced the decision now used to assail the ability and to impugn the action of the attorney. It demonstrates, at least,—indeed, it must be held to be indisputable,-that the principle of law in question was not well settled in 1889, and the plaintiff was therefore blameless for not conforming his conduct to it.

We have pressed upon our consideration, however, the inquiry as to whether the plaintiff should not have reasonably anticipated the decision as finally made. The statute provides that certain contracts not in writing are "void." All the earlier cases proceeded upon the theory that, under a general denial, the plaintiff was required to establish a legal claim valid under the statute, or fail. In Crane v. Powell, the justice writing the opinion stated that it was desirable to assimilate the practice regarding the defense of frauds with the statute of limitations, usury, and gaming and betting, and that, as those defenses must be affirmative

NEGLIGENCE OF ATTORNEYS,-continued.

the sums so paid together with such further damages as she sustained by the negligence.

Van Wallhoffen v. Newcombe, 10 Hun, 236.

So if a person is compelled to pay a sum of money by reason of his refusal to answer a proper question, which his attorney negligently advised him not to answer, he may recover the same from the attorney.

Gihon v. Albert, 7 Paige, 278.

In an action for negligence in overlooking prior encumbrances and reporting that a mortgage subsequently purchased by the client was a first lien, the damages are not limited to the difference between the amount paid and that which might be obtained from the foreclosure of the mortgage, but there may be a recovery of the sum the client was obliged to pay to remove the prior encumbrances.

Fay v. McGuire, 20 App. Div. 569; 81 St. Rep. 286; 47 Supp. 286.

Nominal damages only will be awarded the client when the neglect charged consisted in delaying to file a mortgage until after a subsequent mortgage had been filed, where the latter has been paid and the obligation which the client's mortgage was given to secure has been satisfied by him without the attorney's agency.

Arnold v. Robertson, 3 Daly, 298.

1900]

ly set up, no good reason could exist why a different rule should prevail in reference to the former statute. The attention of the learned justice was probably not called to the fact that the statute of limitations cannot be invoked, except affirmatively, pleaded, because of an express statutory provision which declares the statute waived unless pleaded. Section 413, Code Civ. Pro. Usury and other defenses obviously constitute new matter. New matter is extraneous to that set up as the basis of the action in the complaint. It is that which admits and seeks to avoid the cause of action alleged. A denial puts in issue whatever the plaintiff must prove to establish his cause of action. What the consensus of judicial thought in this state formerly held to be available under a general denial was determined in this decision by a divided court, to be waived unless set up as new matter.

Defendant's contention that the plaintiff should have anticipated such a result is entirely without support. That this case made a radical change in our system of pleading is now generally recognized. Indeed, that seems to be conceded by the learned court itself. We are thus led to the conclusion that there was no negligence on the part of the plaintiff. It was error, therefore, to dismiss the complaint, and to direct a verdict for the defendant on the counterclaim.

Patterson v. Powell.

Judgment appealed from reversed, and new trial ordered, with costs to the appellant. All concur.

Appellate Term.

LIVINGSTON-MIDDLEDITCH CO. v. NEW YORK COL LEGE OF DENTISTRY.

[31 Misc. 259; 98 St. Rep. 140; 64 Supp. 140.]

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

1. AGENCY-EVIDENCE- RES GESTA.

Where an attorney brings to plaintiff, to be printed, a manuscript purporting to be his argument as defendant's attorney in a lawsuit, he is presumed to be acting as agent, and not as principal; and, to show his authority to order the work as agent, admissions and declarations of an officer of defendant made to plaintiff's employé during progress of the work are admissible, as part of the res gestæ.

NOTE. LIABILITY OF ATTORNEYS FOR DISBURSEMENTS.

With the exception as to official fees, the liability of attorneys is the same as that of other agents in regard to disbursements incurred in the client's business, and depends on the disclosure of their relation to the matter. If their agency is not disclosed they are personally liable.

An attorney is liable to clerks, sheriffs and other similar officers for their fees for services in an action rendered at the request of the attorney.

Bonynge v. Waterbury, 12 Hun, 534.

In the case last cited, Daniels, J., said, “The rule of law upon this subject arose out of the peculiar relation existing between the client and his attorney and counsel, and the courts have not considered themselves at liberty to extend it, but in other cases, not within its terms, have regarded these officers as entitled to the same immunity as other agents acting on behalf of known principals."

In Judson v. Gray, 11 N. Y. 408, Selden, J., said, "It is clear, therefore, that the decisions in this state, in which attorneys and solicitors have been held liable for the fees of the officers of the court, upon a promise implied from their acts done as attorneys merely, are in conflict with principle, and with the whole current of authorities elsewhere on the subject. In all such cases it is a sound and salutary rule, that while the court, for the mere sake of restoring the harmony and symetry of the law, will not interfere to overthrow a doctrine which has through a series of decisions come to be universally regarded as fixed and settled, they will nevertheless circumscribe the anomaly within as narrow limits as possible."

Livingston-Middleditch Co. v. New York College of Dentistry.

2. SAME REBUTTING INFERENCE FROM BILLS RENDERED. The plaintiff, having printed the arugment of defendant's attorney in a lawsuit, manuscript for which was brought to plaintiff by the attorney, may rebut the inference that it extended credit therefor to the attorney, and not to defendant, arising from his having sent the bill directly to the attorney, by evidence explaining why it did so.

Appeal from city court of New York, general term.

Action by the Livingston-Middleditch Company against the New York College of Dentistry. From an order of the general term of the city court, and a judgment entered thereon (61 Supp. 918), affirming a judgment dismissing the complaint, plaintiff appeals. Reversed.

The opinion delivered in the court below was as follows:

PER CURIAM. There seems to be no sufficient reason given by the appellant for disturbing the judgment appealed from. A reading of the documen

LIABILITY OF ATTORNEYS FOR DISBURSEMENTS,-continued.

In that case the court, while recognizing the authority of Adams v. Hopkins, 5 Johns. 252, which held an attorney liable to a sheriff for services requested by him in an action, and of Trustees of Watertown v. Cowen, 4 Paige, 510, which held a solicitor in a suit in chancery liable to an examiner for his fees, refused to extend the rule to a referee in an equity suit under the Code, notwithstanding the identity of the duties performed by such examiners and referees.

The rule that an attorney is liable to sheriffs for their fees on executions was re-approved in Campbell v. Cothan, 56 N. Y. 279, although admitted to be unsupported by principle and at variance with precedents elsewhere. "But," said Andrews, J., "it has been for more than sixty years the law of this state. No practical injustice results from enforcing it, as attorneys act in view of the liability they incur in issuing executions, and it ought not now to be disturbed."

It is, however, only when the judgment is satisfied or discharged, or the attorney has countermanded the execution, that the sheriff may look to the attorney for his fees.

Van Kirk v. Sedgwick, 87 N. Y. 265.

An attorney who places a cause on the calendar is liable to the sheriff for his calendar fees.

Reilly v. Tullis, 10 Daly, 283.

Appellate Term.

[Apr.

tary proofs, especially the exhibits of defendant, confirms this determination, and the oral portion of plaintiff's evidence does not disturb it. The cases cited quite fail in establishing the principle contended for,-that an attorney at law, when ordering printing in the client's case, thereby makes liable the client, without special notice or instruction; and the record before us shows that credit was given and the work was done for the attorney upon request of his clerk.

The rulings of the court below can be sustained on good ground, and the judgment appealed from is therefore affirmed, with costs and disbursements.

Argued before BEEKMAN, P. J., and GIEGERICH and O'GORJJ.

MAN,

LIABILITY OF ATTORNEYS FOR DISBURSEMENTS,-continued.

It must, however, be shown by some evidence other than the calendar itself that the attorney sought to be charged filed the note of issue.

Reilly v. Flynn, 10 Daly, 462.

When an attorney promises to pay a referee's fees he becomes the principal debtor therefor.

Dinkel v. Wehle, 63 How. Pr. 298; 11 Abb. N. C. 124.

An attorney is not liable to a stenographer employed by him to take the testimony on the trial of his client's case unless he expressly contracted to become personally bound.

Bonynge v. Waterbury, 12 Hun, 534.

Bonynge v. Field, 81 N. Y. 159.

The same rule applies to a bill for a copy of the testimony taken.

Sheridan v. Genet, 12 Hun, 660.

In the case last cited it was said, "It was not to be supposed that he had any personal interest in the copy in the absence of proof to the contrary. If stenographers seek to make counsel liable, they must take the necessary steps to accomplish that end."

It is immaterial whether the party sought to be charged for stenographer's fees, on the order of his attorney, is the party instituting the proceeding in which the testimony is taken or not.

Harry v. Hilton, 11 Abb. N. C. 448; 64 How. Pr. 199.

An attorney is not liable to a commissioner in partition for his fees although the attorney has included them in the bill of costs and collected them. The remedy of the commissioner is against the attorney's client.

Lamoreux v. Morris, 4 How. Pr. 245.

Where an expert witness attends and testifies at the request of attorney or counsel, notwithstanding the expressed unwillingness of the client to be responsible for such services, the expert cannot recover of the client.

Packard v. Stephani, 85 Hun, 197; 66 St. Rep. 500; 32 Supp. 1016.

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