In re the Application of McGuinness

| N.Y. App. Div. | Jul 1, 1902

Per Curiam:

Without dissenting from the conclusion reached by the learned judge at Special Term, “that the respondents acted with entire honesty in their dealings with the petitioner,” we do not concur in his view that they were responsible only for the amount they retained of the $500, and should not be answerable for the portion thereof which they paid to Welch.

It is conceded that the infant was entitled to two-thirds of the $500; and the legal obligation resting upon the respondents, after they received the money, to pay it to her or her guardian, was not discharged by the payment to Welch. Were the latter before the court, exact justice would require that he should be compelled to disgorge his ill-gotten gains; but the fact that he was the one mainly responsible for the fraud practiced on the infant, is no bar to the recovery of what was due her from the respondents.

They were the attorneys of record, the agreement was with them, they received the money in settlement, and, if through carelessness or confidence in their clerk, they failed to discharge the legal'obligation imposed upon them of paying over the full amount, less the sum agreed upon for counsel fees, they cannot, to the injury of the infant petitioner, hide behind Welch and insist that the portion' of the $500 which they wrongfully paid to him should be credited to them and deducted from the amount that rightfully belonged to the infant. By the written agreement under which they were retained by the guardian as attorneys óf record, there was created ■the relation of attorney and client and it thereafter became the duty of the respondents, to guard jealously the rights of their infant client. If imposed upon by Welch, they have their remedy against him, but they cannot escape from the consequences that legally fiow from the relation they assumed.

We think, therefore, that the court should have directed the respondents to pay the two-thirds, together with interest from the date of the demand. The order accordingly should be modified so as to ■ direct the payment of $338.33, with interest from June 17, 1900, and as so modified affirmed, with ten dollars costs and disbursements to the appellant. . . " ’

Present:— Yan Brunt, P. J., O’Brien, McLaughlin, Hatch and Laughlin, JJ. . ' . .

Order modified as directed in opinion, and as modified affirmed, with ten dollars costs and disbursements to the appellant.

Note.—The rest of the1 cases of this term will he found in volume 70. App. Div.— [Rep.