Hopping v. Quin

12 Wend. 517 | N.Y. Sup. Ct. | 1834

By the Court,

Savage, Ch. J.

In my opinion, the judge erred in saying that the proceedings of the plaintiff could not be called negligent. The defendant put two notes into his hands for collection, when they had three days to run before a suit could be brought upon them. About the time when he ought to have received his money, he was arrested on a ca. sa., at the suit of his debtor, for a bill of costs ; and it seems to be made matter of complaint in the case, that he was surprised and angry. He had cause enough for surprise, and for irritation also. It was the duty of the plaintiff to have known that a suit could not be brought on the last day of grace, and his bringing such suit must be imputed either to negligence or ignorance ; in either case, it lays no foundation for an action against his client, who has been the sufferer. The plaintiff was in fault in not waiving his default according to the rules of the court, and in entering judgment after the default had been set aside. His whole proceedings, from beginning to end were wrong; and yet he asks his client to pay him for his services. He was entitled to nothing, and so the judge ought to have told the jury. On the contrary, he was bound to pay his note to Emmons’ attorney ; and if, by his negligence, his client lost his debt, he was liable for the amount, or for any less damage he may have sustained. Whether he would be justified in bringing a second suit without directions from his client, would depend upon circumstances. If, after the commencement of the first suit, Emmons became insolvent, and there was no prospect of collecting the money from him, it was not the duty of the attorney to commence a second suit, as it could produce nothing to his client but would subject him-to the payment of a bill of costs.

Orderof circuit judge for new trial confirmed ; costs to abide event.