Defendant appealed from an order denying his alternative motion for judgment non obstante or a new trial.
Defendant is the clerk of the city of Rochester and as such is the custodian of the city’s records, including those showing special assessments.
The representativе of an estate sold plaintiff certain city real estate for $5,000 and agreed to furnish an abstract of good title. He ordered the аbstract from an abstracter and procured the usual official certificates to accompany the same. This included a certificate of defendant as to special assessments, for which the abstracter paid defendant 25 cents and which amount he in turn collected from his employer. The certificate showed there were no special assessments. The deal was closed in the fall of 192S. About May 1, 1929, plaintiff discovered that there was an unpaid special assessment in the sum of $214.80, which he then paid. The assessment appeared upon the records in defendant’s office. The certificate was untruthful. Plaintiff, now seeking to recover from defendant, wаs given a directed verdict.
There is authority to the effect that where an abstracter has committed a breach of duty in the preрaration of his work he is liable to the person employing him but not to a third person relying on his certificates. Anno. 34 A. L. R. 68. To mitigate the rigor of this rulе some courts have held that where the abstracter knows the purpose of the abstract his liability extends to the third party. Anno. 34 A. L. R. 71. In some states statutes have been enacted
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imposing liability for damage proximately caused to any person for such errors. This includes third persons relying upon an incorrect abstract. Anno. 34 A. L. R. 73. See also Anno. 68 A. L. R. 376; International Products Co. v. Erie R. Co.
“The manufacturer of an automobile, who purchases the ivheels from a reputаble maker, is liable to one who purchases a car from a retailer, for injury caused by collapse of a wheel becаuse of defects which would have been discovered by reasonable inspection.” MacPherson v. Buick Motor Co.
This principle was announced in the early cases of Thomas v. Winchester,
Defendant, in making this certificate, knew that someone was expected to rely thereon. His want of knowledge of the identity of the person for whose benefit the service was procured is immaterial. The undertaking to make such a certificate was an assumption to do it correctly. He was the official and presumably understоod his official records. He was in a position to know the truth. His certificate would be readily accepted. Indeed, the seller had no particular use of the certificate except to furnish it to the buyer as a representation of what it purported to show. Defendant knew the purpose of the certificate.
*87 Where one undertakes to discharge any duty by which the conduct of others mаy be governed, he is bound to perform it in such a manner that those Avho are thus led to action in the faith that such duty avüI be properly performed shall not suffer loss through improper performance of the duty or neglect in its execution.
It is the rule that Avhere a person, within whоse special province it lies to know a particular fact, has given an erroneous answer to an inquiry made in regard to it by a рerson desirous of ascertaining the fact for the purpose of determining his course accordingly, he should be held bound to make good the assurance he has given. Derry v. Peek, L. R. 14 App. Cas. 337.
Appellant urges that the court take a stand either on contract or tort. Thongh the transaction had its origin in a contract, the one wronged may have a contractual remedy and yet he may also havе a remedy for a violation of duty. The latter is the basis of recovery in this action, Avhich sounds in tort even though a contract was •involved.
In Glanzer v. Shepard,
“We think the laAV imposes a duty tOAvard buyer as Avell as seller in the situation here disclosed. The plaintiffs’ use of the certificates Avas not an indirect or collateral consequence of the action of the weighers. It was a consequence which, to the Aveighers’ knowledge, was the end and aim of the transaction. * * * The defendants held themselves out to the public as skilled and careful in their calling. They kneAv that the beans had been sold, and that on the faith of their certificate payment Avould be made. They sent a copy to the plaintiffs for the very purpose of inducing action. All this they admit. In such circumstances, assumption ' of the task of weighing was the assumption of a duty to weigh carefully fоr the benefit of all whose conduct Avas to be governed. We do not need *88 to state the duty in terms of contract or of privity. Growing out of a contract, it lias none the less an оrigin not exclusively contractual. Given the contract and the relation, the duty is imposed by law. * * Constantly the bounds of duty are enlarged by knowlеdge of a prospective use. * * The casual response, made in mere friendliness or courtesy * * * may not stand on the same plаne, when we come to consider who is' to assume the risk of negligence or error, as the deliberate certificate, indisputably an ‘act in the law’, * * * intended to sway conduct. Here the defendants are held not merely for careless words, * * * but for the careless performances of a service — the act of weighing— which happens to have found in the words of a certificate its culmination and its summary. * * * Diligence was owing, not only to him who ordered, but to him also who relied.”
Glanzer v. Shepard,
We conclude, both upon principle and authority, thal/a public" official who issues his certificatе, as here involved, knowing and intending that someone else rely thereon, owes him a duty imposed, by law, though he deals only with the seller, and that a breach of such duty will render him liable for loss thereby inflicted upon the buyer.
Affirmed.