Zeitlin v. Morrison — 167 A.D. 220

Majority

p. 220

Yetta Zeitlin, Respondent, v. Isidore D. Morrison and Jacob R. Schiff, Appellants.

First Department,

April 9, 1915.

Headnote

Attorney and client — action against attorney for alleged negligence in failing to commence action until barred by Statute of Limitations — evidence.

In an action against a firm of attorneys who had been consulted by the plaintiff as to bringing an action for personal injuries claimed to have been sustained by the falling of a door in a loft building in which she was employed, for alleged negligence in failing to bring her action until after the Statute of Limitations had run it appeared that the plaintiff at the time she consulted the defendants was an infant; that they prepared papers for the appointment of a guardian ad litem for her which they delivered to her brother for the purpose of having him obtain her signature to the petition which was necessary, she being of the age of eighteen years or upwards, and that they were never returned; that after defendants had been consulted, the plaintiff gave her claim no further attention for several years, nor did her brother make any further inquiry for three years or more. It did not appear from the evidence that the accident was due to the negligence of the plaintiff’s employers or that they were in any way responsible for the falling of the door.

Held, that a judgment in favor of the plaintiff should be reversed and a new trial granted upon the ground, first, that it did not appear that plaintiff had a cause of action; and second, that the plaintiff and her brother failed to return the papers prepared for the appointment of a guardian.

Ingraham, P. J., and Hotchkiss, J., dissented,

p. 221

Appeal by the defendants, Isidore D. Morrison and another, from a determination of the Appellate Term of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on or about the 4th day of December, 1914, affirming a judgment of the City Court of the City of New York in plaintiff’s favor, and also affirming an order of said court denying defendants’ motion for a new trial.

Joseph M. Proskauer, for the appellants.

Samuel S. Marcus, for the respondent.

I think the judgment appealed from should be reversed.

First. The evidence does not, as I read the record, sustain a finding that the accident was due to the negligence of the plaintiff’s employers, or that they were in any way responsible for the falling of the door; on the contrary, the only fair inference is that the landlord took charge of the repairs and directed one of its employees (the elevator operator) to remove the door. But even if it be assumed that the plaintiff’s employers had directed the door to be repaired or removed, this, in and of itself, did not establish that' they were negligent, unless the doctrine of res ipsa loquitur applies, and I do not think it does. In Marceau v. Rutland R. R. Co. ( 211 N. Y. 203 ) the court, referring to the application of this doctrine when the relation of master and servant exists, said: “In the nature of things, the injured employee who sues his employer must present a much higher degree of proof than is necessary in the case of a wayfarer or passenger. * * * If the injured employee sues at common law and seeks to invoke the maxim, he must necessarily make proof of facts and circumstances which, under the common law, exclude every inference except that of the employer’s negligence.” Here, not only did the plaintiff fail to exclude other inferences than her employers’ negligence, but, as indicated, the inference to be drawn from all the evidence is that the condition of the door was due to the action of the landlord. Besides, from the testimony offered on behalf of the plaintiff it appears that the hinges of the door were out of repair, and to remedy the same the door had been removed

p. 222

by an employee of the landlord. He, according to the testimony of one of plaintiff’s witnesses, “took off that door and had been fixing it and was doing the work and he don’t know himself how it happened to fall.” It did not appear whether the door had been replaced, or if so that the employers had knowledge of that fact.

Second. It is undisputed that defendants prepared papers for the appointment of a guardian ad litem, for plaintiff, who, being eighteen or nineteen years of age, would have to sign the petition for such appointment. The defendant Schiff testified. that he delivered these papers to the plaintiff’s brother for the purpose of having him obtain her signature, and that they were never returned. While the brother denied receiving any such instructions, or that he took the petition away, he did not deny Schiff informed him of the necessity of his sister’s signing it as a preliminary to bringing the action. Until the petition had been signed an action could not be started. The conduct of the plaintiff and her brother, after it is claimed defendants were retained, indicates with a reasonable degree of clearness they knew an actiop had not been started.

The plaintiff at the time of the accident was eighteen or nineteen years of age. After defendants were consulted, she gave her claim no further attention for several years. Nor did the brother make any further inquiry for upwards of three years.

Upon both grounds, therefore, I think the determination appealed from and the judgment and order of the City Court should be reversed and a new trial ordered, with costs to appellants in all courts to abide event.

Laughlin and Dowling, JJ., concurred; Ingraham, P. J., and Hotchkiss, J., dissented.

Determination appealed from and judgment and order of City Court reversed and new trial ordered, with costs to appellants in all courts to abide event. Order to be settled on notice.

Cases cited

Marceau v. Rutland Railroad Co. 211 N. Y. 203 N.Y. 1914-04-28 p. 221