146 N.Y.S. 649 | N.Y. App. Div. | 1914
Plaintiff was a client of the defendants, who were lawyers. By the judgment from which the appeal is taken he has recovered damages against them. The cause of action alleged was negligence of the lawyers in the discharge of professional employment, causing pecuniary injury to the client. If the cause of action was proved it is certain liability follows. (Byrnes v. Palmer, 18 App. Div. 1; affd., 160 N. Y. 699.) The facts from which the jury were permitted to find negligence are:
An involuntary petition in bankruptcy was filed against Rothschild on August 1, 1906, and he was adjudged bankrupt August 30, 1906. The appeals from the Municipal Court judgment and order were dismissed November 9,1906, in the Appellate Term, after plaintiff’s attorneys had a stay granted in the United States court vacated, and execution was thereupon issued.
The City Court action was commenced about May 12, 1906. The defendants procured an order to show cause to consolidate that and the Municipal Court action, with a stay of proceedings of both actions. That order was vacated and judgment entered on defendants’ default. The motion to consolidate was heard and denied. The judgment by default was opened by order. A verified answer was interposed. Defendant Rothschild demanded a bill of particulars, which was furnished. This was followed by an amended answer. Plaintiff’s attorneys served notice of trial and filed a note of issue for the earliest possible date, the first Monday in June, and also moved to place the case on the short cause calendar, which was opposed by Mr. Steuer for the defendant Rothschild. The motion was granted. It appeared on the day calendar on June thirteenth The defendant Rothschild applied for adjournment on account of Mr. Steuer’s engagement and the application was opposed and denied. Plaintiff took an inquest. A motion was made by Mr. Steuer, on an affidavit of merits made by defendant Rothschild, and on other affidavits, to open the inquest. The motion was granted and an order entered restoring the case to the calendar. The defendant Rothschild, in compliance with the order, gave an undertaking, with Michael Levenson and Leo Rosengarten as sureties, that the defendant
Mr. Byall had not heard from the plaintiff from the time the plaintiff left for Europe until after-the arrangement in the City Court was completed. Then, learning that the plaintiff had returned on the previous Saturday evening, or some time thereafter, he went to plaintiff’s office and explained to him everything that had taken place in both actions, and plaintiff expressed satisfaction with what Mr. Byall had done. After that, during the progress of the Municipal Court action, he reported fully to the plaintiff. From the time he received the claim until he obtained judgment in the City Court he gave almost half of his personal time to these actions, and during the two weeks preceding June twenty-fifth his whole time.
After the dismissal of the appeals from the Muncipal Court judgment and order, he brought suit in the City Court against the sureties on the Municipal Court undertaking. It was tried before Justice Conlan without a jury. Briefs were submitted. The judge held the matter under advisement for two or three weeks and then directed judgment for plaintiff against the sureties. An appeal was taken by the sureties and the judgment was reversed and the complaint dismissed on the merits (sic). (Montrose v. Levenson, 114 N. Y. Supp. 136.) Before suing on the undertaking, and throughout the litigation, Mr. Byall reported fully to the plaintiff. Mr. Byall moved at the Appellate Term and at the Appellate Division for leave to appeal to the' Appellate Division. The motions were denied, as was also a motion for reargument at the Appellate Division. Judgment was entered on the stipulation in the City Court action in favor of plaintiff, Montrose, against Bothschild for $1,058.97, October 3, 1906, and execution was issued on that day and returned unsatisfied. Mr. Byall’s firm subsequently brought an action in the Supreme Court in behalf of plaintiff against the sureties to the bond in the City Court suit. Answers were interposed. Before suing, and throughout the litigation, Mr. Byall reported fully to the plaintiff. - This action was tried at Special Term.. Briefs were submitted. The justice held the case under consideration for about six weeks and then directed a verdict in favor of the sureties, and judgment thereon was
The aggregate amount of plaintiff’s claim and costs paid by him in the actions against the sureties was $2,452.39. The verdict was for $2,625.44.
Upon the facts presented the foundation of the charge of negligence is that the defendants did not apply to the conduct of the litigation discussed, principles of law which are elementary or conclusively settled by authority; because for errors of judgment they are not hable, and no other dereliction of professional duty was proved. (Byrnes v. Palmer, supra.)
The case at bar was tried and submitted to the jury upon the theory that the determinations against the plaintiff here, in the two suits brought by him to establish the liahihty of the sureties in the two "undertakings to which we have adverted, were so far binding upon the defendants here that from that circumstance, standing alone, the jury could infer negligence on their part. We do not agree with the plaintiff that the defendants are bound under the doctrine of res adjudícala, and we do not understand that the court below gave effect to such a contention. Persons neither parties nor privies to an action — and these defendants bore neither relation to the other actions — are not estopped by a judgment. (Moore v. City of Albany, 98 N. Y. 396, 409; Remington Paper Co. v. O’Dougherty, 81 id. 474, 490.)
The plaintiff’s further contention is that under the rule of stare decisis the law as decided in the two former actions became the law of the case. This contention was adopted by the trial court in submitting the case to the jury. If the law was correctly applied in the former cases no harm was done. The defendants here assert it was not. The rule of stare decisis is controlling when the court of last resort has laid down a principle of law applicable to a certain state of facts, or an intermediate court has made such a decision in harmony with
We think the law is settled that upon appeal to the appellate tribunal from a judgment of the Municipal Court of the City of New York, if an undertaking be given to stay execution upon the judgment, the sureties are bound if no exception to the sufficiency of the sureties is taken. If exception be taken and the sureties justify, they are also bound. If exception be taken and there be no justification of the sureties, they are thereby discharged from liability. (Manning v. Gould, 90 N. Y. 476; Zwecker v. Levine, 135 App. Div. 432,433; Mun. Ct. Act [Laws of 1902, chap. 580], §§ 314, 315, compared with Code Civ. Proc. §§ 1335, 1352.) If the exceptions taken be withdrawn by written or oral stipulation before the time for justification, fixed either by original notice or by stipulation for adjournment thereof, expires, the undertaking stands as though no exception to the sureties requiring them to justify had been taken. (Goodwin v. Bunzl, 50 N. Y. Super. Ct. 441; affd., 102 N. Y. 224; Zwecker v. Levine, supra.)
It is clear, therefore, that if the defendants had entered into a stipulation, oral or written, with the appellant Eothschild or his attorney, upon whom it was required by law that the notice of exception to the sufficiency of the sureties be served, withdrawing the notice (Mun. Ct. Act, § 315), the sureties would not have been discharged. How could an oral agreement, entered into between them and the counsel representing the defendant Eothschild, have any different effect ? We are of the opinion that counsel in charge of a proceeding in an action has the authority of the attorney appearing for the same party to make any stipulation or do any other act in relation to procedure which in his judgment would benefit the cause of his
The defendant Ryall and the witness Steuer gave testimony which would have authorized the jury to find that an oral stipulation had-been made between Mr. Ryall and Mr. Steuer as counsel for defendant Rothschild, withdrawing the exception to the sufficiency of the sureties while the proceeding for justification was pending. The court was requested to charge as follows: “ That if the notice of exception to the sureties on the Municipal Court undertaking was withdrawn on oral stipulation, the sureties were not discharged, though they did not justify, and the defendants are not liable for the loss of the claim sued upon in said court.” The court declined the request and exception was taken. The court charged the jury that the oral stipulation referred to was not efficient to hold the sureties, and exception was taken. These exceptions present reversible errors.
The plaintiff recovered in this action the amount of the City Court judgment and the costs adjudged against him in an action brought by him to recover the amount of that judgment against the sureties on an undertaking given as a condition of vacating a default judgment taken by the plaintiff in the action in the City Court. The undertaking read as follows:
“ An inquest having been taken herein on behalf of the plaintiff upon the defendant’s default, and an application having been made on behalf of the defendant to open his default and vacate the inquest, and such application having been granted on condition that the defendant herein execute an undertaking in the sum of One thousand ($1,000) Dollars for the payment of any judgment herein.
“Now, therefore, we, Michael Levenson, residing at 139 East 12nd Street, N. Y. City, and Leo Rosengarten, residing at 11 East 96th Street, New York City, do hereby jointly and severally undertake and agree that the defendant herein will pay the amount of any judgment which the plaintiff may recover in this action not exceeding the sum of One thousand ($1,000) Dollars.
“Dated, New York, June ilth, 1906.
“ MICHAEL LEVENSON [l. a.]
“LEO ROSENGARTEN [l. s.] ”
“ It is hereby stipulated as follows: That the plaintiff may have judgment against the defendant for the full amount claimed in the complaint herein, together with interest.
“ That the plaintiff may tax a full bill of costs, including two trial fees.
“ That the defendant hereby withdraws the appeal heretofore taken from the order of Mr. Justice Green, entered in the office of the Olerk of this Court on the 25th day of May, 1906, and consents that the plaintiff may tax costs as if the order had been affirmed by the Appellate Term of the Supreme Court after argument.
“Dated, this 25th day of June, 1906.
“BAGGOTT & EYALL,
“ Plaintiff’s Attorneys.
“ STEUEE & HOFFMAN,
‘i Defendant’s Attorneys. ”
“In consideration of the consent to the entry of judgment herein, and the taxation of certain costs,
“ It is hereby stipulated and agreed on the part of the plaintiff that judgment shall not be entered in this action before the 1st day of October, 1906.
Dated, this 25th day of June, 1906..
“BAGGOTT & EYALL,
“ Plaintiff’s Attorneys.”
The plaintiff here was defeated- in his action to enforce the obligation of the sureties in the above undertaking. (Montrose v. Levenson, N. Y. L. J., Sept. 28,1909; affd. without opinion, 132 App. Div. 928.) The plaintiff advances the same argument in support of the binding effect of this adjudication on this branch of the case as he did in regard to the other branch. There is no need to repeat our views. We cannot hold that there was any elementary principle of law, or one established
The undertaking we are considering was not to pay the claim in suit, but the judgment that might be recovered. The sureties’ obligation did not arise until the judgment was recovered. The indebtedness for which they were sureties had not matured. A judgment might never have been recovered. Until its recovery the sureties would be in no position to pursue the principal debtor. They could not control the creditor’s litigation. He could conduct it in accord with his best judgment to accomplish his own purposes. The rule of exoneration did not apply because the reason for it did not exist.
The learned trial court was requested to charge: “That if the defendants, in good faith and in the exercise of reasonable judgment, were in doubt as to whether they could, by forcing or attempting to force the City Court case to trial, obtain judgment in June, they were not negligent in consenting to accept a stipulation for judgment and agreeing in consideration
There is no evidence that the defendants were negligent in their employment in the City Court action.
The defendants were entitled to have submitted to the jury the question whether an oral stipulation withdrawing the exceptions to the sufficiency of the sureties in the Municipal Court action was made between Ryall and Steuer, and, if the jury found it was, the defendants were entitled to a charge that no negligence could be found against them on that branch of the case.
The judgment and order should be reversed and a new trial granted, costs to abide the event.
Jenks, P. J., Burr, Thomas and Putnam, JJ., concurred.
Judgment and order reversed and new trial granted, costs to abide the event.