11 A.D. 156 | N.Y. App. Div. | 1896
The petitioner, Kate R. Tevis, was the owner of a second mortgage on premises in Rockland county. An action for the foreclosure of the first mortgage on that property had been commenced. The appellant was retained by her as an attorney to represent and protect her interests in that action. The action proceeded to judgment. As the time for the sale under that judgment approached consultations were had between the attorney and his client as to how her interests should be protected at the sale. Her mortgage was for $2,200. The amount due upon the first mortgage, with costs and expenses, was about $3,700. It appeared that the petitioner was substantially without means with which to buy in the property on the sale and protect herself. The appellant advised that, despite this, he should bid for her at the sale, and that in his. opinion one Russell Sage, who was the owner of the equity of redemption, would not let the property be sold to her, but would, bid above her in his own interests. At the first sale of the property Sage appeared, and negotiations were had between him and the-appellant concerning the petitioner’s mortgage. Sage offered to give $500 for it. This the appellant declined, but offered to transfer it to Sage for $1,500. This proposition was refused and no agreement was reached. Afterwards the petitioner authorized the appellant to assign the mortgage to Sage for $500, and directed him to write ,to Sage to that effect. The appellant did not write to Sage because, as he says, Sage had been informed that the petitioner would accept his offer of $500, and he had been told that Sage would send a check to him for that amount. Afterwards the peti
As there is here a substantial controversy as to certain facts, if the ■determination of those facts Avas necessary for a decision of the petitioner’s rights, we should not be inclined to dispose of this matter on a summary application, but leave the petitioner to her remedy by action. But we think that, even on the state of facts claimed by the appellant, his purchase from the petitioner of the mortgage cannot stand, and that her right to the additional sum he obtained from Sage is clear. Assuming that the transaction aves a purchase by the appellant from the petitioner of the mortgage, “ the burden was upon him to establish affirmatively that his transactions Avith his client were fair and just; that his client acted on full information of all the material circumstances, and that he did not take undue advantage of his client’s complacency, confidence, ignorance •or misconception.” (Place v. Hayward, 117 N. Y. 487; Whitehead v. Kennedy, 69 id. 462.)
This rule is most strictly enforced where the subject-matter of the purchase is the matter in litigation. In Rogers v. Marshall (3
It appears that Sage has since stopped the payment of his check. The appellant should not be compelled to pay money which he lias not received. If he is in a condition to turn over the check to the petitioner, then she, as a condition of. relief, should restore to him the $450 and take the check.
The order appealed from should, therefore, be so modified that if the appellant tenders the petitioner the check received by him from Sage and she refuses to return to him the sum of $450, then this application should be denied, but if he fails to tender her the check, then the order in all respects should stand, with ten dollars costs and disbursements.
All concurred.