Stephens v. Humphreys — 39 N.Y. St. Rep. 134

Majority

p. 134

Melvin Stephens, Resp’t, v. Dorothy Humphreys et al., App’lts.

(Supreme Court, General Term, First Department,

Filed June 12, 1891.)

Headnote

Attorney and client—Purchase of chose in action by attorney—Code Civ. Pro., § 73.

Where it appears that a mortgage was originally purchased by attorneys íor a client, a judgment creditor of mortgagor, with the object of protecting his interest by foreclosure, and he not caring to complete the purchase that at his request they persuaded a third party, not a lawyer, to buy it as

p. 135

an investment, it is not material whether he bought with an intent to foreclose or not, if the attorneys were in no way interested in buying it so that they might foreclose, as the interdiction of Code Civ, Pro., § 78, does not apply to them.

Appeal from a judgment of foreclosure granted at special term, Hew York county, in a foreclosure proceeding in which a defense had been interposed that plaintiff’s attorneys had purchased the mortgage for the purpose of bringing an action thereon, in violation of Code Civ. Pro., § 73. Upon the trial at special term it was shown that upon the advice of his attorneys, Trimmer, a judgment creditor of the mortgagor, had concluded to purchase the mortgage instead of selling the property under his execution, so as to avoid the fifteen months delay for redemption. After all the arrangements had been made he changed his mind, and requested his attorney to procure a purchaser for the mortgage, which he did in the person of the plaintiff.

John K. Van Ness, for app’lts; Silas B. Brownell, for respk.

—The learned judge who presided at the trial of this cause was fully justified in the remark he made at the close of the evidence that not the slightest suggestion of a defense was presented in the proofs. The defendant, E. L. Humphreys, undertook to show that the bond and mortgage were purchased by attorneys with the intent and for the purpose of bringing an action thereon in violation of the statute. Code Civ. Pro., § 73. In the attempt to establish this defense the party interposing it signally failed. The attorneys had no personal interest in the transaction at all, and it clearly appears that the purchase was originally made with the object of protecting the interest of a judgment creditor (Trimmer) who subsequently and because a payment had been made on account of his judgment, did not care to complete the transaction, and at his request his attorneys induced the plaintiff, who is not a lawyer, to buy the bond and mortgage, and he did so on his own account , and not as a mere cover for the attorneys, and as he swears ivbeing called as a witness for the defendant) he “ put the money into that security as an investment whether or not the plaintiff bought with an intent to foreclose is not material. The interdiction of the statute did not apply to him, if he in good faith bought and the attorneys were not “in any manner interested in buying.’’ If they procured the purchase to be made in order that they might benefit, and the purchaser was merely acting in subserviency to their desire, the defense might be sustained, but it is plain that when Trimmer did not care to proceed with the matter and asked the attorneys to find some, one to take it off his hands, the plaintiff was induced to do so. The facts of the case as they appeared on the trial would not have authorized any other conclusion than that reached. It did not appear that the bond and mortgage were bought solely that the attorneys might bring a foreclosure first, and, therefore, the case is not controlled • by what was decided in Browning v. Marvin, 100 N. Y., 144 .

The judgment must be affirmed, with costs.

Van Brunt, P. J., and Patterson, J., concur.