Oishei v. Lazzarone — 40 N.Y. St. Rep. 660

Majority

p. 660

Achille J. Oishei, Resp’t, v. Giuseppe Lazzarone, App’lt.

(Supreme Court, General Term, Fifth Department,

Filed October 23, 1891.)

Headnote

Attobneys—Oedeb oe abbest.

An order of arrest was obtained in an action for fraudulently obtaining plaintiff’s money. It was charged that defendant, with intent to cheat and defraud, entered into an agreement with plaintiff by which the latter was to advance money, employ an attorney and render services in obtaining from a railroad company damages for personal injuries to defendant, agreeing not to settle with the company without plaintiff’s consent and his being present to receive his share of the money received, and that he made such settlement with the company without plaintiff’s knowledge. At the time stated in the complaint plaintiff had been admitted as an attorney. Held, that the contract was void under § 74 of the Code, and that the order of arrest and cause of action could not be upheld.

Appeal from an order of the county judge of Brie county, dated April 7, 1891, denying the defendant’s motion to vacate an order of arrest

Edward P. Coltle, for app'lt; Edward T. Durand, for resp’t.

The cause of action against the defendant, as stated in the complaint, is that on the 11th day of January, 1891, the defendant, with intent to cheat and defraud the plaintiff, entered into a contract with the latter whereby it was agreed that the plaintiff should advance money, employ an attorney and render services for the defendant in procuring money from the Allegany & Kinzua Railroad Company for personal injuries received by the defendant upon the company’s railroad, and that the defendant then and there fraudulently agreed with the plaintiff that he would not settle with the railroad company without the plaintiff’s consent, and without plaintiff being present to receive, his pay for money advanced and services rendered; that thereafter, in disregard of the agreement, the defendant, without the knowledge of the plaintiff, made a settlement with the railroad company. It is further alleged that the plaintiff relied upon the representations made to him by the defendant, and that he advanced to the defendant, upon the claim against the company, the sum of forty-three dollars in money, and paid $100 doctor’s bills, and obligated himself to pay for the services of another in prosecution of such claim. It is also alleged that the share that was to be reccixmd by the plaintiff for such advancements and services was to be two-thirds of the recovery that might be had against the company. This action is brought to recover the sum of $300, which was supposed by the plaintiff to be two-thirds of such estimated recovery, together with the plaintiff’s advancements and disbursements. Thence follow allegations to the effect that on the

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24th day of March, 1891, in pursuance of such fraudulent purpose to deceive the plaintiff, the defendant made a settlement with the railroad company and took the money which, under the contract, belonged to the plaintiff, and which should have been delivered to the plaintiff by the company, and converted the same to his own use.

Upon this complaint and an affidavit of the same import, the county judge issued his order of arrest, the ground thereof being, as stated in the order, “ fraud and deceit in obtaining property consisting of money, services and credits by false and fraudulent means, pretenses, representations and statements.”

The order of arrest and the cause of action stated in the complaint cannot be upheld. At the time stated in the plaintiff’s verified complaint and in his affidavit, the plaintiff, when this agreement was made, namely, the 11th day of January, 1891, was an attorney and counselor at law, having been admitted to the bar, as the records of this court show and as stated upon the argument by his counsel, on the 9th day of January, 1891. It is now suggested in the appeal papers that a mistake was made in the time mentioned in the complaint and in the affidavit. But in an affidavit verified the 25th day of March, 1891, taken before the police justice of the city of Buffalo, for the purpose of procuring a criminal warrant against the defendant, it is stated that there were two contracts made with the defendant, one bearing date December 27,1890, and the other January 11, 1891. The learned county j udge, in denying the motion to vacate the order of arrest, intimated in his opinion that if it appeared undisputedly that the bargain between the parties was made after the plaintiff became an attoriiey and counselor at law, the motion would prevail; but he places the denial of the motion upon the subsequent assertion of the plaintiff under oath, made on the hearing of such motion, verified April 2, 1891. The affidavit referred to is as follows:

“ That the agreement mentioned in the complaint herein was made before deponent was admitted, and in December, 1890, and deponent was an interpreter when the money was loaned.”

But the day before this the plaintiff made a more full affidavit to be used upon the hearing of the motion to vacate the order of arrest, which contains no intimation that the time stated in the complaint and in the affidavit upon which the order of arrest was granted was in any respect erroneous. The affidavit of April 2nd cannot prevail over the move detailed statement of facts contained in the preceding affidavits. The affidavit of April 2nd may be consistent with the one used before the police magistrate, and yet it fails to disclose that there was more than one agreement. Upon the whole evidence it is apparent that the contract relied upon by the plaintiff is the one dated January 11, 1891. If this is not a just inference from all of the affidavits made by the plaintiff, the fault"rests solely with the plaintiff himself, who,'having possession of the written agreement or agreements, failed to produce them upon the hearing before the county judge.

The provisions of § 74 of the Code of Civil Procedure are imperative. “ An attorney or counsellor shall not, by himself, or by or

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in the name of another person, either before or after action brought, promise or give, or procure to be promised, or given, a valuable consideration to any person, as an inducement to placing, or in consideration of having placed, in his hands or in the hands of another person, a demand of any kind for the purpose of bringing an action. But this section does not apply to an agreement between attorneys and counselors, or either, to divide between themselves the compensation to be received.” That no cause of action can arise out of a transaction thus prohibited by statute is such a plain proposition as hardly to require the citation of authority to support it.. But such authority may be found in Baldwin v. Latson, 2 Barb. Ch., 306 ; Wetmore v. Hegeman, 88 N. Y., 73 ; Browning v. Marvin, 100 id., 144 .

It follows that the order appealed from should be reversed.

Order reversed, with ten dollars costs and disbursements and the motion to vacate the injunction granted, with ten dollars costs.

Dwight, P. J., and Lewis, J., concur.