31 Misc. 250 | N.Y. App. Term. | 1900
This is an action brought by an attorney to recover for professional services rendered to the defendant in the case of Crane v. Powell, 139 N. Y. 379. The defendant rested his defense upon the plaintiff’s alleged negligence in the discharge of the duties in question, and interposed a counterclaim for $2,000 damages resulting therefrom. Upon the trial the complaint was dismissed and judgment directed for the defendant on the counterclaim.
The action out of which this controversy arose was brought against the defendant to recover damages for the breach of an oral agreement for board and office room not to be performed within a year, and consequently void under the statute; and the question
Considering the state of the law and practice touching this subject at the time of the rendition of the services, it cannot be said that the plaintiff was guilty of negligence. For more than half a century the courts of this State had consistently declared the statute available under a general denial. There were no authorities opposed to this view, for dicta, however much entitled to respectful consideration, are not recognized as authorities, will not be regarded by courts as adjudications, and are not binding on the tribunals that pronounce them. The plaintiff might well have reasoned that the court would not disturb what had been regarded by the profession for a long period as a well-settled principle of pleading. The plaintiff was called upon to pursue one of two courses. The one he followed had the support of authority, and his judgment cannot be impeached if he regarded the other as opposed to reason, principle and authority. It does not follow that because the court afterwards adopted a different view of the law, that negligence must be imputed to the attorney. At most, it was but a mere misjudgment on a doubtful question of law, and an attorney cannot be held guilty of negligence in case of a reasonable doubt. He is only bound to exercise the ordinary legal skill and knowledge of his profession, and is not liable for every error of judgment or opinion as to the law. Where he errs on a question not elementary or conclusively settled by authority, that error is one of judgment for which he incurs no liability. Brynes v. Palmer, 18 App. Div. 1, affd., 160 N. Y. 699; Bowman v. Tallman, 27 How. Pr. 275, affd., 3 Abb. Ct. App. Dec. 182; 3 Am. & Eng. Ency. of Law (2d ed.), 380. Surely, it will not be contended that the law, as declared in Crane v. Powell, supra, was conclusively settled at the time the answer was interposed by the plaintiff. Judges Peckliam and Earl by their dissent declared that the law as laid down in that case was not in harmony with the adjudications.
We have pressed upon our consideration, however, the inquiry as to whether the plaintiff should not have reasonably anticipated the decision as finally made. The statute provides that certain contracts not in writing are “ void.” All the earlier cases proceeded upon the theory that under a general denial the plaintiff was required to establish a legal claim valid under the statute, or fail. In Crane v. Powell, the justice writing the opinion stated that it was desirable to assimilate the practice regarding the defense of frauds with the Statute of Limitations, usury and gaming and betting, and that as these defenses .must be affirmatively set up, no good reason could exist why a different rule should prevail in reference to the former statute. The attention of the learned justice was probably not called to the fact that the Statute of Limitations cannot be invoked except affirmatively pleaded, because of an express statutory provision which declares the statute waived unless pleaded. Code Civ. Pro., § 413. Usury and the other defenses obviously constitute new matter. New matter is extraneous to' that set up as the basis of the action in the complaint; it is that which admits and seeks to avoid the cause of action alleged. A denial puts in issue whatever the plaintiff must prove to establish his cause of action. What the consensus of judicial thought in this State formerly held to be available under a general denial was determined in this decision by a divided court to be waived unless set up as new matter. Defendant’s contention that the plaintiff should have anticipated such a result is entirely without support. That this case made a radical change in our system of pleading is now generally recognized. Indeed, that seems to be conceded by the learned court itself.
Judgment appealed from reversed and new trial ordered, with costs to the appellant.
Beekman, P. J., and Giegerich, J., concur.
Judgment reversed and new trial ordered, with costs to appellant.