West v. Kurtz — 16 N.Y. St. Rep. 696

Majority

p. 696

Albert F. West, App’lt v. William Kurtz, Resp’t.

(New York Court of Common Pleas, General Term,

Filed June 4, 1888.)

Headnote

Attorneys—Purchase of chose in action with intent to bring suit —What necessary to constitute offense.

The mere fact of the purchase of a bond and mortgage by an attorney is-not evidence of a purchase with the intent and for the purpose of bringing action thereon. To constitute the offense of such a purpose, the primary purpose of the purchase must be to bring action; that intent must not be merely contingent and incidental.

Alexander Thain, for app’lt; Anderson & Man, for resp’t.

This is a motion for a reargumenfc of the-appeal from the judgment in favor of the defendant.

The action was brought upon a bond given by the defendant to one Henry Kurtz, which was assigned to Zimri 'West, and by him assigned to the plaintiff in this action. One of the principal questions litigated on the trial was the alleged taking of the bond by the plaintiff, who is an

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attorney at law, with the intention of "bringing suit upon it.

We think the motion for a reargnment should be granted. We are led to this conclusion not because we think that any evidence was overlooked, or that there was not evidence to support the verdict of the jury, but for the reason that we think the general term overlooked an exception by the plaintiff to the refusal of the trial judge to charge a request, which presents a question decisive of the case. The request and exception to which we refer will be found at folios 119, 120 of the case. The court was asked to charge that if the jury believed that the bond was transferred to the plaintiff as collateral for an advance of moneys made in February, 1885, that that took the transaction out of the operation of the statute respecting the bringing of suits by attorneys in their own name, and that the jury should find for the plaintiff on that branch of the case.

The court refused to charge this request, stating “ I can hardly say that, it was not taken out of the statute, unless transferred free from the intention of bringing the suit, and I think if so taken that it is right to charge as you request.” With this request and exception on the record, we cannot say that the case was submitted to the jury in strict accordance with the authorities.

The authorities hold that the mere fact of the purchase of the bond, mortgage, etc., by an attorney, is not evidence of a purchase “with the intent and for the purpose ” of bringing an action thereon. Hall v. Bartlett, 9 Barb., 301 ; Bristol v. Dann, 12 Wend., 144 ; Moses v. McDivitt, 88 N. Y., 62 . An attorney may purchase for investment or for profit, or for the protection of other interests; and the purchase is not made illegal by an intent to bring suit if necessary for collection.- Moses v. McDivitt, 88 N. Y., 62 . To constitute the offense the primary purpose must be to bring suit and the intent to bring a suit must not be merely incidental and contingent. Id. The purchase must be made for the very purpose of bringing such suit, and this implies an exclusion of any other purpose. Id.

Now in this case, the defendant did not rely on the mere fact of purchase to prove the offense, but insisted that the facts showed that the plaintiff had not bought the bond for investment or profit, or protection of other interests, but solely to bring the suit, and claimed that the proof showed it. The plaintiff on the other hand testified that there was an oral assignment of the bond to him in February, as security for a loan. It was a question for the jury whether he spoke the truth as to this transaction, and his credence as an interested party, had to be submitted to the jury.

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The jury may not have believed him as perhaps they did not, hut we cannot positively say whether the jury found that the plaintiff took the bond for the sole purpose of bringing suit (and we think there was evidence upon which they might have so found), or whether they found, having in view the ruling of the trial judge, upon this request, while the bond may have been transferred as collateral security for a loan of money, it was not so transferred free from the intention of bringing suit.

We think a question decisive of the case was presented by this exception which was overlooked by the appellate court and which justifies us in ordering a re-argument of the appeal.

Larremore, Oh. J., concurs.