96 N.Y.S. 475 | N.Y. App. Div. | 1905
This action was brought tó recover damages alleged to have been sustained by the plaintiff in consequence of the negligence, lack of skill and legal knowledge of the defendant, an attorney at law, in the conduct and management of a criminal action, as a result of which it is alleged the plaintiff suffered an imprisonment of three months and five days in the Kings County Penitentiary.
The plaintiff was indicted on December 7, 1896, for the crime of grand larceny in the second degree, charged to have been committed by obtaining from one George L. Stanley, on or about the 18th day- of September, 1893, the sum of $25 by means of false pretenses and representations. The indictment grew out of the sale of real property. Prior to December 7, 1892, the plaintiff was the owner in fee of a parcel of real property ir. the town of Southfield, Richmond county, which had been platted for sale in city lots. He had made sales of several of these lots, by land contracts, on partial payments, and on executing final conveyances had procured releases of the lots sold from the lien of a mortgage which covered the whole property. On said
■ The false pretensés charged in the indictment weré, first, that the plaintiff, was the owner of the lots, and, second, that they were free - and clear of all incumbrances; The plaintiff testified to his employment of the defendant. A day was fixed for the trial, and upon that day the plaintiff -went to the courthouse where he met the. defendant,'who informed him “ that he had made a satisfactory settlement with Hr. Stanley, but that the settlemeiit did not remove.; the indictment from the District Attorney’s books. * * * He
The plaintiff.was discharged from the penitentiary on March 12, 1898, by final order upon a writ of habeas corpus.
As to the employment of the defendant by the plaintiff ,and what occurred in court at the time he was convicted upon his plea of guilty, the plaintiff was corroborated by the evidence of other witnesses. The record shows that after the plaintiff and several witnesses had given testimony in his behalf, he was recalled by liis counsel, and during his examination, which does not appear to have been completed, before the plaintiff had rested his case, and without motion or request on the part of defendant’s attorney, the following occurred : “ The Court: Certainly within two years he had received $25 from Mr. Stanley on this property. I shall hold as far as the criminal advice is concerned that you cannot hold him unless he did it in bad faith, which you have disclaimed. I shall also hold that if Mr, Stanley paid him $25 on this contract within
The indictment was so clearly insufficient that the defendant could not have been required to plead to it. (People v. Knatt, 156
• Again, the offense charged being a misdemeanor (Penal Code, § 535), arid having been satisfactorily settled out -of court, sections 663 and 664 of the Code of Criminal Procedure provided a manner in which such settlement should be brought to the attention of the pourt and authorized the discharge of the plaintiff. Whether the defendant was remiss or negligent in his duty as the attorney of the plaintiff in not having availed himself of this remedy in behalf of his client was clearly a question of fact which the plaintiff had the right to have determined by the jury.
The judgment must be reversed and a new trial granted, costs to abide the event.
Hirschberg, P. J., Bartlett, Jenks and Miller, JJ., concurred.
Judgment reversed and new trial granted, costs to abide the ' event.