Shabbona Creston Oil & Gas Corp. v. Doherty,

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| N.Y. App. Div. | Jul 3, 1942

Per Curiam.

Plaintiff, as assignee, sued defendant for the reasonable value of legal services claimed to have been rendered defendant by one F. Dudley Kohler on an 'oral retainer made February 5, 1930. Dismissal of a second cause of action was affirmed by this court (Shabbona Creston Oil & Gas Corp. v. Doherty, 264 A.D. 701" court="N.Y. App. Div." date_filed="1942-04-02" href="https://app.midpage.ai/document/people-v-plantamura-5371781?utm_source=webapp" opinion_id="5371781">264 App. Div. 701) and the ease went to the jury on the issues raised by plaintiff’s first cause of action. Defendant appeals from a judgment entered on the verdict of the jury (eleven to one) for $2,000,

*910After a consideration of the entire record, we think the verdict of the jury is against the weight of the credible evidence and that the judgment appealed from should be reversed. The issues raised by the defense of the Statute of Limitations were issues of fact and may not be disposed of solely as issues of law, and accordingly a new trial should be ordered.

The attorney who claimed to have rendered the services was disbarred by this court subsequent to the date of the alleged contract and the termination of the claimed services. (Matter of Kohler, 240 A.D. 501" court="N.Y. App. Div." date_filed="1934-04-06" href="https://app.midpage.ai/document/in-re-kohler-5330995?utm_source=webapp" opinion_id="5330995">240 App. Div. 501.) The trial eourt permitted inquiry to be made showing the fact that the attorney had been disbarred by this court for misconduct, but properly excluded the order and the opinion of this court in the disbarment proceeding setting forth the various acts of misconduct for which the witness had been disbarred. (People v. Dorthy, 156 N.Y. 237" court="NY" date_filed="1898-06-07" href="https://app.midpage.ai/document/people-v--dorthy-3630709?utm_source=webapp" opinion_id="3630709">156 N. Y. 237.)

The judgment appealed from should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Present — Martin, P. J., Untermyer, Dore, Cohn and Callahan, JJ.

Judgment unanimously reversed and a new trial ordered, with costs to the appellant to abide the event.