Lazzarone v. Oishei

While the testimony in the court below was conflicting, yet' the facts upon which this appeal is to be determined are practically undisputed. It appears that the plaintiff was injured by the Allegany & ICinzua Railroad Company, and thereafter entered into a contract with the .defendant Oishei to prosecute said company for damages sustained. Oishei, in consideration of the contract, was to receive two thirds of the recovery. He was to advance money to pay doctors’ bills and other charges, and employ an attorney to prosecute the claim. An action was begun against the railroad company under this arrangement, and was pending when th'e plaintiff, intending to deprive said Oishei of the benefits of his contract, secretly settled said action with the company, and refused to pay Oishei anything. Thereupon Oishei made complaint to the police magistrate of the city, upon which a criminal warrant was issued. Plaintiff was arrested thereunder, and lodged in jail. What the charge made against him was, does not appear; but Oishei states that plaintiff was “confined in jail four or five days upon the warrant issued by Justice King, until the civil proceeding could be instituted.” No criminal charge was ever pressed; and plaintiff, having obtained counsel, was taken before, the magistrate and discharged, and was immediately rearrested by virtue of an order of arrest issuing out of the county court of Erie county, in an action brought by Oishei to recover damages for the claimed traudnlent settlement. A motion was thereafter made to discharge the order of arrest, which was denied; and from such decision an appeal was taken to the general term of the supreme court, where said order was reversed, and plaintiff was discharged. 15 N. Y. Supp. 933 . While the plaintiff was confined in jail, and after an appeal had been taken from the decision of the county court, but before it was heard in the appellate tribunal, Oishei, at the instance of plaintiff’s wife, vigited plaintiff at the jail, and stated to him, among other things: “If you pay me what you owe me, I will let you out right away.- I don’t want anything more than what you owe me.” At another interview, Oishei said he would let him out “on the conditions that he would release my bondsmen and

The court below held the release a bar to right of recovery, and rendered judgment for costs against plaintiff; hence the appeal. I should be disposed to hold, in the absence of any authority, that the note and release taken from plaintiff, under the circumstances of this case, are void, creating no liability against him, and not affecting defendants’ liability upon their bond. Abundant authority, however, establishes such conclusion. There was in this case duress of imprisonment. Plaintiff was imprisoned, first, upon a fictitious charge, subsequently was arrested under a claim which did not authorize his arrest, and in order to relieve himself, after long imprisonment, executed the papers. No right of arrest or imprisonment existed in either case, and no paper executed to procure his liberty bound him. Foshay v. Ferguson, 5 Hill, 154 . In Evans v. Begleys, 2 Wend. 243 , the court held that a judgment, entered upon a bond and warrant of attorney, executed by defendants while in close custody, would be set aside, while in Guilleaume v. Rowe, 94 N.

In the present case it was well known to Oishei that plaintiff had procured counsel at the time he was arrested. A motion had been made, and he had made many affidavits therein. 'He knew that efforts were being made to set aside the order, and must be presumed to have known that if the. order was set aside his liability attached for damages growing out of the illegal arrest and imprisonment. At this juncture he procures the release from any liability upon the bond, obtains a note for $70, procures bail for plaintiff, and thus, having security, and release from contingent liability, conceals the same from plaintiff’s attorney, and argues the appeal from the order. If he had succeeded, and the order were affirmed, he could immediately clap plaintiff in jail, by causing his bail, which he controlled, to surrender him; and thus plaintiff would have gained nothing, while Oishei ran no risk. Sudh practices, especially by tm attorney, should not be tolerated, certainly not upheld, in a court of justice. Not alone was this the condition, but at the time when the appeal was argued Oishei was in fact plaintiff’s attorney in an action to recover damages for plaintiff’s illegal imprisonment, of which he had been the cause. It is quite difficult to see how he could, in good faith, act for the plaintiff to redress a wrong which he had caused, and at the same time continue a right to inflict further injury of the same kind.. Perhaps ■ he thought he was aiding the client by perpetually imprisoning him, in order that his damages might be enhanced against the railroad company, as upon no other theory can I see that his services were of use to his client. Plaintiff does not now, nor at any other time has he expressed a consuming desire to look to the railroad company for damages, and undergo further imprisonment. It may be that plaintiff has been guilty of a fraud and a wrong, by which Oishei has suffered, but such condition does not authorize such practice as obtained here. The reversal of the order fixed defendants’ liability for such expense as plaintiff had incurred, and such damage as he had suffered, within the limitations of the penalty of the bond. Ferris v. Tannebaum, (Com. Pl. N. Y.) 15 N. Y. Supp. 295 .

Upon the merits of this case, therefore, plaintiff became entitled to recover. But while the plaintiff, upon the facts as shown, is entitled to recover, ! reluctantly reach the conclusion that the judgment appealed

WHITE, J., concurs.

dissents, and favors affirmance of judgment on the sole ground that the court obtained no jurisdiction of the defendants, and not upon the merits.