Mahler v. Hyman — 43 N.Y. St. Rep. 540

Majority

p. 540

Michael Mahler, Resp’t, v. Samuel F. Hyman, App’lt.

(New York Common Pleas, General Term,

Filed February 1, 1892.)

Headnote

1. Attorneys—Liability fob moneys collected fob client—Estoppel,

Anattorney who is retained to collect a judgment, and is furnished by his client with a release and satisfaction piece from the judgment creditor, cannot resist payment of the moneys collected thereon, on the ground that' there is no evidence that his client owns the judgment. In such case he is. a bailee of the claim for his client, and is estopped to deny his tille to the money.

2. Same—Evidence. '

Proof that defendant, upon request for payment of a sum claimed to have been collected by him, replied that he would straighten up when lie had collected the rest, is sufficient to show that he had collected sucha sum.

Appeal from the judgment of a district court in an action by a client to recover money collected by defendant as attorney for plaintiff.

Samuel F. Hyman in person, for app’lt; no appearance for respondent.

At the close of plaintiff’s case, defendant moved to dismiss the complaint, on the ground that no evidence was produced to show that plaintiff was owner of the judgment which he had entrusted to defendant to collect it appearing that one Hahn was the judgment creditor.

It is a perfect answer to this contention that the plaintiff retained the defendant to collect the judgment; that the defendant, accepted the retainer from the plaintiff ; that to enable defendant to collect the judgment plaintiff furnished him a release and a. satisfaction piece from the judgment-creditor; that of the $100’ collected by defendant he paid $50 to plaintiff, and now he refuses to account for the balance without pretense of other justification than the claim that the evidence exhibits no legal transfer .of the judgment to plaintiff Mahler. It is not apparent that Hahn, the judgment-creditor, asserts a right to the money, or makes objection to its payment to plaintiff. By what authority,, then, does defendant refuse payment to plaintiff, his client ? He; was bailee of. the claim for plaintiff; and so is estopped to deny plaintiff’s title to the money. His contract was to account to his-client for the money collected on the claim entrusted to him by plaintiff; and it is no concern of his whether his client was accountable over for the money to somebody else.

The position of clients would be precarious indeed, if when-they claim money collected on their retainer, the lawyer can resist its payment on the pretense that it belongs to another, who, however, himself asserts no title to it. Defendant’s contention is as destitute of legal as of moral support. '

As to the twenty dollars collected on the chattel mortgage, defendant contends that there is no evidence of its receipt by him. We think otherwise. On the examination of the plaintiff, this occurred:

p. 541

“ Q. Did you speak to him (defendant) about this $20 ? A, Yes.

“ Q. What did he say ? A. He said when he collected the rest of it he will straighten up,” a plain admission of the receipt of $20, especially in view of the fact that defendant did not venture to-deny its receipt.

Judgment affirmed, with costs.

Bookstaver and Bischoee, JJ., concur.