133 N.Y.S. 794 | N.Y. App. Div. | 1912
The plaintiffs’ appeal is from a judgment that dismissed them as to the first and second causes of action. The third cause of action was eliminated by adjustment. A decree of the Surrogate’s Court removed the plaintiffs as executors and trustees of the estate of their father. The defendant for a time was their attorney and counsel. The first cause of action alleges generally defendant’s lack of due care, skill or diligence in the matters submitted to his advice or intrusted to his charge in relation to the administration of the estate. It also specifies instances thereof, and charges that in consequence of these acts and others on the part of the plaintiffs in their representative capacities, there was revocation of their letters and removal of them. It alleges that they had suffered and would suffer great damage and will be deprived of their yearly commissions as executors and trustees, and by reason of the premises the damages are and will be $10,000. The second cause of action alleges lack of due care, skill and diligence in the preparation, presentation, and in matters relating to the proceedings to settle judicially the accounts of the executors, so that the account presented was futile and of no benefit to the plaintiffs, but of great loss and damage to them in that they were compelled to pay the entire costs of the proceedings and deprived of their commissions and of their costs and allowances to the amount of $1,904.79.
The theory of the action is negligence. At trial the learned counsel for the plaintiffs said that they were “ merely claiming for bad legal advice,” and again, “I know of no reason why Mr. Judge should be charged with dishonesty. I am not charging him with dishonesty.” And in his points on this appeal his contention is that all of the acts of misconduct which the surrogate found against the plaintiffs in his decree of removal and revocation were “ due solely to the advice of
But the damages alleged in the second cause of action may he regarded in a different light. The plaintiffs upon accounting were charged personally with the expenses thereof, contrary to the general rule. The specific amount of their personal outlay is not hard to ascertain. If the plaintiffs can establish that this pecuniary loss was due to the lack of due care, skill or diligence of the defendant as a lawyer, in the preparation, filing and presentation of the account, we think that the defendant might be held liable. It is not enough, however, to rely upon the revocation of letters and .removal, for the plaintiffs might have been charged personally none the less, even if they had been continued in these capacities (e. g., Matter of Gabriel, 44 App. Div. 623, and cases cited; affd., 161 N. Y. 644; Matter of Harnett, 15 N. Y. St. Repr. 725; Matter of Long Island L. & T. Co., 92 App. Div. 5). In the same opinion from which we have quoted heretofore, the learned surrogate also wrote: “It is no answer to this application to say that in the end they filed verified accounts which were substantially correct. This was only accomplished by the strenuous efforts of counsel revealing the gross, and as to the executor, William J. Flynn, evidently wilful inaccuracies of the original account, which he endeavored to sustain by confessed perjuries.” Reading those findings of the surrogate which relate more particularly to the account, we perceive that he lays stress upon the many delays and obstacles which were interposed by the executors so that the time that intervened
The burden upon the plaintiffs in this branch of the case was to establish that the personal charges against them upon the accounting were due to the lack of due skill, care and diligence of their attorney in and about the preparation, presentation, filing and sustention of the account. There must appear such certainty as would satisfy the mind of a prudent and impartial person that the alleged shortcoming of the defendant was the cause of the charge against them. But the question upon this appeal is whether the plaintiff had given sufficient evidence or was halted improperly in offering relevant, material and competent evidence which might have tended to establish this contention, so as to save themselves from dismissal. The features of the account which were accentuated by the learned
As to the alleged perjury, it seems that one of the executors, forced to the answer, testified before a referee upon the accounting that the said witness Brady was a partner in the business continued when he was not. One of the plaintiffs testified that she called the attention of the defendant to that bit of evidence, saying: “You know very well that Phillip Brady is not a partner of my brother’s in that business,” and the defendant said: “Yes, I know it. I told your brother to say so.” The witness said: “ Well, my brother must take that back,” and the defendant said: “ He can take it back on rebuttal.” And there was evidence offered that a question and answer among a series prepared by the defendant for the executor on rebuttal did retract or explain that statement. When the offending executor was questioned on this subject the court
The judgment must be reversed and a new trial must be granted, costs to abide the event.
Jerks, P. J., Hirsohberg, Burr, Woodward and Rich, JJ., concurred.
Judgment reversed and new trial granted, costs to abide the event.