Voorhees v. Dorr

51 Barb. 580 | N.Y. Sup. Ct. | 1868

By the Court, Johnson, J.

The principal question in this case, is, whether the agreement between the plaintiff and the defendant, for the prosecution of the action in this court, in the name of the former, against McCartney, can be enforced. According to the verdict of the jury the transaction was this: Canfield claimed to have a demand against McCartney, which he wished to have prosecuted, as he was about to leave the state. It was finally arranged between the plaintiff and defendant, and Canfield, that the latter should assign his claim, to the plaintiff, and that the defendant should prosecute the demand as attorney in the plaintiff’s name, but the plaintiff was to have no interest in the moneys recovered by such action. It was also agreed between the plaintiff and the defendant that the defendant should pay the plaintiff $50, whenever the action was determined, and pay his necessary expenses in attending court. His compensation for the time spent in attending court was to be included in the $50, and he was to be saved harmless from all costs and expenses of the litigation. The action was tried at the circuit and the plaintiff was nonsuited. This action was then brought in a justice’s court, to recover the $50, and certain expenses incurred in attending the trial personally, at the request of the defendant, and moneys paid out in procuring the attendance of witnesses at, his like request, and for other services rendered and moneys paid to and for the defendant. The plaintiff" had a verdict in the justice’s court, and the judgment, thereon rendered, was on appeal affirmed in the county court. The defendant claims that this agreement for the prosecution of the action against McCartney is illegal and void and cannot be enforced by action.

The demand was assigned to the plaintiff, in order that the action might be brought and maintained in his name. This invested him with the legal title to the chose in action, though under the arrangement his right would be that of a trustee of an express trust only, according to section 113 of the Code. The arrangement between the parties, so far as the plaintiff is concerned, falls exactly within the general definition of maintenance. It was an action in which he had no interest, but consented officiously to intermeddle with it, and afford the use of his name for a consideration. If maintenance is not against law, the consideration is sufficient to uphold the agreement and furnish a ground for recovery. It has been held that illegal maintenance does not exist except in the single case mentioned in the Revised Statutes, and that such maintenance was repealed or abrogated by those statutes. (Sedgwick v. Stanton, 14 N. Y. Rep. 289. Durgin v. Ireland, Id. 322.)

The agreement here, does not fall within the condemnation of the statute, and being in no respect contrary to any existing law, I see no reason why it should not be enforced. It contemplated, in addition to the use of the plaintiff’s name, and the liability necessarily incurred for the costs, to the opposite party, certain services to be rendered by the plaintiff in attending court at the time of trial, which were in fact rendered. There is nothing necessarily immoral, or censurable, in aiding and assisting another in the prosecution and collection of a just claim, or one which is believed to be such, by the party assisting, where such assistance is sought in good faith by the party so assisted. On the contrary, such acts from good motives, and for just ends, may be as commendable and praiseworthy, as any other acts of benevolence and kindness. It is the bad motive, and the unjust end sought to be attained, .which renders such acts immoral and reprehensible. Even before the Eevised Statutes, when the law against maintenance was in full force, many acts in the nature of maintenance were held to be justifiable from the circumstances under which they were done. There were no less than five exceptions to the general rule, within which assistance in the nature of maintenance could be lawfully furnished. And the rule itself, having long survived the evil it was intended to remedy, was very properly abrogated, except so far as the statute‘has preserved it. The plaintiff was not, there.fore, when he entered into this agreement with the defendant, guilty of doing an illegal act, as he seems to have believed. It was not barratry on the part of the plaintiff, because it is but a single instance, and that offense consists in the practice or habit of stirring up such strife.

The defendant also cites, and insists upon, by way of defense, the provisions of the Revised Statutes forbidding attorneys, counsellors, and solicitors buying rights in action to prosecute, or lending or advancing money or things in action to procure suits, and making all such acts misdemeanors, and subjecting such attorney, counsellor, or solicitor, to removal from office in the several courts in which he is licensed. (2 R. S. 288, §§ 71-73.) And he invokes in his behalf the application of the maxim Ex turpi causa non oritur actio. But I do not see that the case falls within either of the sections of the statute, or within the scope of the maxim cited. It was clearly not a purchase of the demand by the defendant as an attorney; nor was it in fact a loan or advancement, or an agreement to lend or advance any thing, by way of inducement, or as a consideration to the owner of the claim, to place it in the plaintiff’s hands for collection. The promise to pay the $50, was not by way of inducement or consideration to the assignment, but simply as a compensation for consenting to stand as a nominal party in the action, and certain.services to be rendered in the progress thereof. Here, again, •it appears that the defendant, who is also an attorney and counsellor of this court, “ builded better than he knew,” and was innocent in law, if not in intent, of the turpitude he urges against himself, by way of defense to the action.

The other points relate to the rulings in the course of the trial. There was no error in allowing parol evidence to be given of the letter. The witness stated that it was lost, and he could not tell what had become of it. He was not cross-examined for the purpose of ascertaining where he kept his letters, or whether he preserved them at all, or what search he had made; but the objection was, that there was no evidence that it had been destroyed, or that the witness had searched for it where he usually kept his letters. The witness stated generally that it was lost, which was sufficient evidence, prima facie, of loss. A further examination might have disclosed an insufficient search for the letter, in thé place where such things were usually kept by the witness, but the defendant did not see fit to make any inquiry.

[Monroe General Term, September 7, 1868.

E. D. Smith, Johnson and J. C. Smith, Justices.]

As to the rejection of Williams, as a juror, it is enough to say that there is nothing in the case, whatever, to show that he was not rejected with the consent of the defendant. It does not appear that the defendant insisted upon his sitting, or made any objection, or took any exception to his exclusion. It is altogether too late to raise an objection, or take exception, upon appeal, in such a case.

The evidence is, on the whole, I think, sufficient to sustain the verdict. It was, indeed, quite conflicting, but the jury has determined which version was entitled to credit. It is not a case where the preponderance is so decisive against the verdict, as to raise the presumption of prejudice or corruption on the part of the jury, and the court would not be justified in setting it aside as wholly against evidence.

The foregoing embraces all the points contained in the punted brief. Some other questions were urged upon the oral argument which were raised in the notice of appeal to the county court, but I am unable to discover any error in either of them, and am consequently of the opinion that the judgment of the county court should be affirmed.