103 N.Y.S. 554 | N.Y. App. Div. | 1907
' The defendant might well have asked for a more specific statement of the alleged agreement on the part of Eiley, the attorney, as to who should advance the money, as to how much he should advance, and as to the conditions upon which such purchase was to be made. Having failed to ask that the complaint be made more definite and certain he cannot now complain that no cause of action is stated if, under the pleadings as they stand, any contract or any agreement could be proven which is fairly within the general allegations made.
•It may fairly be inferred that Eiley’s assurance to. the plaintiffs that he would purchase these policies and hold them for their benefit referred to tile sale upon December 10, 1903. He had advised the plaintiffs that that was the only way in which they could obtain substantial benefit from the policies and had assumed to undertake to perform this officéfforthem. ■ In violation of his assurance he allowed their title to become divested by the sale, and afterwards, by secret agreement, purchased the property himself. Upon proof of these 'facts we are of the opinion that-equity should impress a.trust ripon the policies in the hands of Eiley or his assignees with knowledge as- to the surplus of . the fund. over and above the amount paid therefor.
The defendant’s contention is that after the sale of'December 10, 1903, the plaintiffs’ title was completely divested; that .Eiley’s relation of trust or agency terminated, and Eiley might thereafter deal with the property the same as though he had been a stranger. In my judgment it is not very material whether the agreement of Eiley’s related tó a purchase at the sale upon December tenth of whether it was an assurance of a purchase at any time that they could be obtained. In either case I think that the subsequent .purchase of Eiley inured to the benefit of the plaintiffs. In Downard v. Hadley (116 Ind. 131) the head note in part reads: “An attorney who is employed to perfect or defend a particular title to land can not, either during the continuance of the employment or after its termination, without disclosing the facts to, .and obtaining .the consent of, his. client, avail' himself of information acquired, or which' it was his duty to acquire, while in that relation, and purchase an outstanding title for himself, and set it up -in hostility to that which he was employed to perfect or defend; on the contrary, a title so acquired enures to the benefit of the client 'or his vendee.” ■ In the opinion of the court it is said: “The obliga
I am not at all sure that to reach this conclusion it is necessary to find a breach of duty on the part of the defendant Riley in failing to purchase at this sale on December tenth. Assuming for the argument that there were conditions to such purchase by reason of which he was absolved from making the purchase, could lie, without his client’s consent, have made a- private purchase next day and obtained title to himself? The fidelity which an attorney owes to his client is to use every endeavor in his power to the advantage of his client. By failing to insist upon conditions, even without collusion, opportunity may be presented for a subsequent purchase by him to his private gain. Collusion itself is difficult to prove. It may ,well be held that to insure the utmost fidelity of an attorney he should be barred from ever after, without his client’s consent, making private gain out of a sale which he was once employed to prevent. This rule may well be dictated by public policy and is in
If then the complaint is held to state a good cause of action we must decide what the Special Term has failed to decide, to' wit, the issue raised by the plaintiffs’ demurrer to the defendant’s'coun-
The interlocutory judgment should, therefore, be reversed and the plaintiffs’ demurrer sustained, with leave to the defendant to amend his answer upon payment of costs of the demurrer and of this appeal.
All concurred.
Interlocutory judgment reversed and .demurrer sustained, with leave to defendant to amend answer upon payment of the costs of demurrer and of this appeal.