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Guilleaume v. Rowe

48 N.Y. Super. Ct. 169 16 Jones & S. 169 Court N.Y. Super. Ct. Decision date 1882-04-03 English

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p. 169
CHARLES L. GUILLEAUME, Appellant, v. EDWARD ROWE, et al., Respondents.

Headnote

Attorney and client. —Execution against the person.—Duress.
A party to an action is, prima facie, bound by, and responsible for, the act of his attorney .in issuing an execution against the person, void for want of jurisdiction to issue.
p. 170
A release from liability for false imprisonment, executed by one in actual custody under a void process, and upon a statement of the deputy sheriff that unless he signed it he would have to stay in jail a long time, is void for duress, and is not a bar to an action for false imprisonment, such facts appearing therein.
Before Sedgwick, Ch. J., Freedman and Russell, JJ.
Decided April 3, 1882.
Appeal by plaintiff from judgment dismissing complaint, and from order denying motion made upon the judge’s minutes for a new trial.
This action was brought to recover damages sustained by reason of a false imprisonment, &c.
In 1871, the defendants, doing business as copartners in this city, under the firm name of C. Dord & Co., brought an action in the supreme court against the plaintiff to recover the sum of $10,000; and judgment was recovered therein on- October 12, 1877, against the plaintiff for the full amount, which judgment was subsequently reversed by the general term. After the entry of judgment, the defendants’ attorneys issued an execution against plaintiff’s property, which was returned unsatisfied. Execution was thereupon issued by the attorneys for the defendants, against the person of plaintiff, under which the plaintiff was arrested and incarcerated in jail for three days. The nature of the action did not warrant.the issuing of an execution against the person of plaintiff, and the attorneys for the defendants conceded this upon the trial. Upon the trial, and at the close of plaintiff’s case, the defendants moved to dismiss the complaint upon the proof produced, upon the ground that (conceding that the execution against Gruilleaume was void for want of jurisdiction to issue) there is no evidence showing that either of the defendants authorized the issuing of the execution, or authorized the arrest of plaintiff in this action. The court denied the
p. 171
motion. The defendants then simply offered in evidence a certain release executed while plaintiff was in actual custody ; reciting that he (plaintiff) would not, in any manner, hold defendants liable for the arrest under the said execution. The evidence in rebuttal showed that plaintiff’s discharge from imprisonment was conditioned upon his signing the stipulation not to sue. At the close of the whole case, the defendants renewed their motion to dismiss, upon the grounds previously stated. The court granted the motion, at the same time stating that it did not consider the release binding. A motion was made for a new trial on the minutes, which was denied. Judgment having been entered, the plaintiff appealed from it and from the order denying his motion for a new trial.
John F. McIntyre, for appellant.
Blumenstiel & Hirsch, for respondents.

The stipulation was not a bar to the action. The uncontradicted testimony showed that the plaintiff signed under compulsion, while restrained of his liberty under a process illegally issued and upon being told by the deputy sheriff that, unless he signed, he would have to stay in jail a long time. It was, therefore, void for duress.

Upon the proofs adduced by the plaintiff, taken in connection with the concession made by the defendants, that the execution against the person of the plaintiff was issued without warrant in the law, the complaint was improperly dismissed. The evidence fully established that in the action of Rowe v. Guilleaume, the attorneys who issued the execution against the person of the plaintiff in this action, acted as such attorneys all through the litigation, before and after judgment for the plaintiffs in that action. This was sufficient to make the said attorneys, prima facie, the agents of the defendants in this action ; for, unless restricted, an

p. 172
attorney has plenary power in the prosecution of a suit to judgment and execution, and in these respects-his acts bind and conclude his client (Newberry v. Lee, 3 Hill, 523 ). In such a case the authority may be deduced from the nature of the employment—which is to collect the claim by legal process ; and the principles-of law which regulate the relation of attorney and client are the same as those which regulate the relation of principal and agent. As a general rule, a principal is liable for such wrong of his agent as is committed in the course of his employment -and' for the benefit of his principal; and this is so, although no express . command or privity is proven (Fishkill Savings Ins. v. Nat. Bank of Fishkill, 80 N. Y. 162 ). And an act which is adopted as a means of accomplishing the object of his agency cannot well be extrinsic to the agent’s emplopment.

It is only, therefore, when, after having issued execution, the attorney undertakes to give special directions for its enforcement in a manner not warranted by the language of the writ, or for which the officer executing the writ may justly decline to take the responsibility in the absence of indemnity, as in Averill v. Williams ( 4 Den. 295 ), and Welsh Cothran ( 63 N. Y. 181 ), that the client can only be held upon proof of special authority to the agent, express or implied, or of subsequent ratification with knowledge of the facts.

In the case at bar no facts were developed sufficient to take the case out of the general rule, and the judgment and order should therefore be reversed and a new trial ordered, with costs to the appellant to abide the event.

Sedgwick, Ch. J., and Russell, J., concurred.

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