Gallup v. Henderson — 25 N.Y. St. Rep. 506

Majority

p. 506

Emeline Gallup, Resp’t, v. James Henderson et al., App’lts.

(Supreme Court, General Term, Second Department,

Filed June 28, 1889.)

Headnote

Attobney and client—Agbeement—When not sustained.

Where an agreement between an attorney and client is unjust and inequitable, and procured by undue influence exerted by the attorney, it cannot be sustained.

Appeal from a judgment entered on a decision rendered at the Kings special term.

This is an action in equity to set aside a deed made by a. referee appointed in an action in foreclosure, conveying to the plaintiff and the defendant Phoebe A. Henderson certain real property, and to procure a conveyance of the property, by the referee, to the plaintiff in her own name solely.

E. Cothren {Brewster Kissam, of counsel), for resp’t.

The general inference, from the evidence in this case, is very strong against the defendant. Henderson.

The plaintiff was nearly eighty years of age, and the first transaction between the parties was an agreement upon a foreclosure of a mortgage whereby the defendant, who was the attorney, was to have all the property brought over $3,000. The attorney claims to be entitled to over $3,000 on this transaction. With the plaintiff’s $3,000, a bond and mortgage, given by Caroline J. Haddon and owned by one Dennis, was assigned to plaintiff. Henderson claims to own this mortgage also, and that the reason why the title was taken to plaintiff was that Haddon’s wife was his niece. Subsequently to the taking of the mortgage, and in May, 1884, the defendant’s wife bought a tax title apparently superior to the mortgage, a lease for one thousand years.

In April, 1885, the foreclosure suit was commenced in

p. 507

plaintiff’s name. The defendant Henderson was the attorney, and his then partner was attorney for his wife, and she set up a superior title; the tax lease and the property was sold subject to it. Then a deed was given to plaintiff and Mrs. Henderson by the referee, and the condition of sale was subject to the tax sale. The defendant Henderson endeavored to get the referee’s deed made out to the two ladies in joint tenancy. It was also part of the defendant’s case that the defendant Henderson had an agreement with the plaintiff to pay $1,000 a year for legal services to be rendered. The plaintiff denies the agreement on the foreclosure. She denies that the Haddon mortgage was held by her for Henderson. She denied the $1,000 a year.

The trial judge properly found. against the defendants. The plaintiff was very old. The defendant was her lawyer, and they lived together. The transaction is so inequitable that, as between strangers, such a finding would be justified.

The judgment should therefore be affirmed, with costs.

Pratt, J., concurs: Dykman, J., not sitting.