158 N.Y.S. 346 | N.Y. App. Div. | 1916
The contract, made by defendant with a lawyer, contemplated his collection of claims of the defendant, as a depositor, against certain banks for payments upon forged checks. It provided for an absolute fee and, in addition, for a contingent fee of a percentage of any moneys collected. The plaintiff was discharged before the claims were adjusted or were collected, and a new attorney was retained, who collected certain moneys. The defendant sought to justify this discharge of plaintiff by plea and by proof of his negligence. At the close of the case both parties moved for a direction of a verdict, but the defendant made timely withdrawal of its motion and asked submission to the jury of certain specified questions, of which one presented the alleged negligence. The court denied the motion of the defendant in all respects and directed a full verdict for the plaintiff. We think the court erred in its refusal to sub' mit the question of negligence to the jury.
The question upon this appeal is whether the proof raised an issue of negligence for the jury, and, if so, can it be said that there was no evidence to sustain a verdict opposite to that directed by the court. (McDonald v. Metropolitan St. R. Co., 167 N. Y. 70.) Such question of negligence is generally for the jury under instructions from the court. (3 S. & R. Neg. [6th ed. Street] § 565, citing inter alia Bowman v. Tollman, note, 3 Abb. Ct. App. Dec. 182; Pinkston v. Arrington & Graham, 98 Ala. 489.) It does not follow that erroneous advice as to the application of the Statute of Limitations to a legal remedy is negligence. For there may arise the question whether such error indicates the lack of due professional care and skill. Nor does it follow that the loss of a remedy through advice which is negligent constitutes actionable negligence. For there may have remained another remedy equally efficacious.
There are authorities which declare that ignorance of statutes or rules in limitation of legal remedies could justify a finding of culpable negligence. (Smedes v. Elmendorf, 3 Johns. 185; Childs v. Comstock, 69 App. Div. 160; Drury v. Butler, 171 Mass. 171; Matter of Estate of A. B., 1 Tuck. 247; Citizens Loan Fund, etc., v. Friedley, 123 Ind. 147; King v. Fourchy, 47 La. Ann. 354; 3 S. & R. Neg. [6th ed. Street] § 567; Stevens v. Walker & Dexter, 55 Ill. 151. See, too, Hopping v. Quin, 12 Wend. 517; Thomas Neg. [2d ed.] 2173 et seq.) Such negligence would constitute a defense to this action. (Hopping v. Quin, supra; Cole v. Roby, 16 N. Y. Supp. 20; Carter v. Tallcot, 36 Hun, 393.) The relation of the defendant and its bank of deposit was that of creditor and debtor. And there was an implied obligation upon the latter to pay out defendant’s money only upon its order and only upon its direction. (Shipman v. Bank S. N. Y., 126 N. Y. 327; Citizens’ Nat. Bank v. Importers & T. Bank, 119 id. 195.) Consequently payments upon forged orders afforded no protection to the bank
As we have said heretofore, the present question is whether a verdict opposite to that directed would have been supported by no evidence. Of course we do not decide, nor can it be inferred, that if the plaintiff had prevailed with the jury upon this issue the proof would not have justified the verdict beyond interference by the trial court or by this court. In view of defendant’s motion for a direction, even though its withdrawal from such motion was timely, the defendant was not entitled to a submission upon all of the facts, but was bound to point out the specific questions which it desired to have submitted. (Bowers v. Ocean Accident & Guarantee Corp., Ltd., 110 App. Div. 691; affd., 187 N. Y. 561; Maxwell v. Martin, 130 App. Div.
It is insisted that a verdict which rested upon a computation of the contingency made upon the sum ultimately recovered by the defendant subsequent to the discharge of the plaintiff could have no just foundation, and that in any event the plaintiff could recover only the absolute fee. The rule as now recognized does not support such contention. (Andrewes v. Haas, 160 App. Div. 421; Martin v. Camp, 161 id. 610; Carlisle v. Barnes, No. 1, 102 id. 573.) In affirming Andrewes v. Haas (supra) the Court of Appeals avowedly reserved the question (214 N. Y. 255, 259).
The judgment and order are reversed and a new trial is granted, costs to abide the event.
Thomas, Care, Stapleton and Mills, JJ., concurred.
Judgment and order reversed and new trial granted, costs to abide the event.