191 A.D. 165 | N.Y. App. Div. | 1920
Lead Opinion
This contract of sale, deed and mortgage were drawn as part of the examination and insuring property to be covered by defendant’s title policies. Such a contract of sale which fixes the terms of the deed can hardly be held to be outside the scope of defendant’s chartered powers. Acts incidental to its business, and especially if necessary to place in insurable condition the title to be guaranteed, are held to be lawful for this defendant. (People v. Title Guarantee & Trust Co., 227 N. Y. 366.) Before starting to search, certify and insure title to land, defendant must reduce to writing not only the physical •description of the property, with a minute of the chain of transfer or devolution from the sovereign of the soil, but also the terms of any easements, appurtenances, reservations, limitations and conditions affecting the offered interest. The mortgage back to the vendor follows as essential to the purchase. Insurance of title — no longer a matter of individual service, after having been originally by corporations under special charters — has become so common that it may now be organized under the Insurance Law, article 5, as amended.
Hence I am of opinion these instruments of title constituted no violation, and that both the informations should be dismissed.
Jenks, P. J., Blackmar and Jaycox, JJ., concur; Kelly, J., reads for affirmance.
Dissenting Opinion
I cannot agree with my associates in the decision about to be announced in this case. If the facts were the same as in People v. Title Guarantee & Trust Co. (227 N. Y. 366) of course I would feel it my duty to follow the ruling of the Court of Appeals no matter what my personal views might be. But the facts are not the same, and I do not interpret the opinion of Chief Judge His cock as indicating any departure from the principles declared by the court in its previous decisions, which condemned the practice of law by corporations as contrary to the policy of the State. “It is not a lawful business except for members of the bar who have complied with all the conditions required by statute and the rules of the courts. As these conditions cannot be performed by a corporation, it follows that the practice of law is not a lawful business for a corporation to engage in. As it cannot practice law directly, it cannot indirectly by employing competent lawyers to practice for it, as that would be an evasion which the law will not tolerate.” (Matter of Co-operative Law Co., 198 N. Y. 479.) The reversal of the conviction in the case of People v. Title Guarantee & Trust Co. (supra) is based upon the opinion of the court that the acts complained of in that case, to wit, the preparation by the corporation, “ without giving any advice leading to and consummated therein,” of a “ bill of sale and chattel mortgage by filling out blanks upon and in accordance with the specific direction of a purported customer,” did not constitute a violation of Penal Law, section 280. And the learned chief judge says: “ No convincing reason is suggested why a corpora
Accepting the test stated by the Court of Appeals, and applying it to the case at bar, I am of opinion that the evidence supports the judgment of the trial court that the defendant violated the statute. There was proof here that the defendant through its employee prepared a contract for the sale and purchase of real property. If it be said that he prepared it in pursuance of oral instructions from the vendor and purchaser, if it be contended that a contract involving the title to real estate is of no more importance than a bill of sale or chattel mortgage, the evidence further shows that defendant’s employee voluntarily advised the purchaser that a street was to be opened through the property, that there would be a certain cost on the owner of the property and that the vendor should bear the assessment. The vendor said he would make it right, the purchaser agreed to “ let it go,” relying on the vendor’s promises. Defendant’s employee said he thought it should go in the contract, but the purchaser testified: “We agreed that, being friendly, it was unnecessary to put it in a contract, and it wasn’t put in the contract.” And defendant, through its employee, prepared the contract without inserting the oral stipulation regarding payment of the assessment. Without reference to whether he was right or wrong, can it be denied that a legal question was presented? A question where the party interested was entitled to the personal intimate advice of a lawyer repre
I am of opinion that the judgment should be affirmed.
Judgments of conviction of the Court of Special Sessions reversed and informations dismissed.