Haas v. Storner

21 Misc. 661 | N.Y. App. Term. | 1897

McAdam, J.

The action is by the assignee of Louis- Cohen, an attorney and counselloiVat-láw, to recover for professional services rendered by the latter in the defense of an action brought by John Tierney against John Miller, a stepson of the defendant, and for disbursements incurred in such defense.

It appears that the defendant had placed Miller in charge of her real property, and that the action by Tierney was .for an assault alleged to have been committed by Miller while attending to his duties as agent about the property: Prior to the beginning of that suit the defendant called upon the plaintiff’s assignor and stated that she was about to go to Europe, that she had placed her stepson in charge of her property, and that anything he wanted done during her absence the plaintiff’s assignor should do for him and charge the expense to her. Acting on this authority and on the credit of the defendant the plaintiff’s assignor performed the services and expended the money for which .the claim is made.

While the Tierney suit was pending an account was stated between the plaintiff’s assignor and the defendant, wherein .and whereby all matters of difference between them were settled and adjusted at $175, which sum was expressly stated to be exclusive of the attorney’s charges in the action. This evidence was sufficient to warrant the justice in finding that the services rendered and the expenditures made were authorized by the defendant, and that when they were concluded they were to be paid for by her.

Upon the trial of this. action the defendant was interrogated respecting the settlement and the fact that the charges in the Tierney suit were to be left open upon its . conclusion. She was asked whether she had not received a certain paper (referring to the account stated) from the plaintiff’s assignor, and to look at a paper shown her and state whether it was not a letter-press copy of the paper she signed. The defendant’s counsel objected to this as not the best evidence, claiming that the original should be produced. The court overruled the objection, and the defendant answered that the paper was & letter-press copy of the agreement she signed, and that she identified the signature thereto as her handwriting. The paper was thereupon admitted in evidence over the defendant’s exception.

The ruling is assigned as error, and the appellant’s counsel calls our attention to Foot v. Bentley, 44 N. Y. 166, in which the court (at p. 170) said: ' “The remaining question arises upon the exception taken to the admissibility of the _ letter-press copies of the plaintiff’s letters addressed to the defendants. We are of opinion that they were not in any sense original papers, and were, in their character, copies to the same extent that other copies carefully compared would have been, neither of which could be read in evidence without first giving notice to produce the originals; and hence, in our judgment, the exception was well taken, and the judgment must, for that reason, be reversed.”'

It will be observed that in the case cited the papers admitted were letter-press copies of the plaintiff’s letters to.- the defendant. In this instance the paper admitted was a letter-press copy of an agreement signed by the defendant, and the defendant herself while upon the stand admitted that it was. a' true copy of the original paper which she had signed. This certainly bound the defendant as an admission against interest, and made the evidence primary in its nature.

The defendant after admitting these facts could not insist that her rights were in any manner prejudiced by the refusal to require the production of the original writing, and the objection that the original was not produced or that notice for its production was not given is purely technical, affecting form and not substance. The case is thus distinguishable from Foot v. Bentley, which is inapplicable.

The judgment accords with substantial justice, is fully sustained by the proofs, and must be affirmed, with costs.

Daly, P. J., and Bischoff, J., concur.

Judgment affirmed, with costs.