Deering v. Schreyer — 27 Misc. 237

Majority

p. 237

James A. Deering, Plaintiff, v. John S. Schreyer et al., Defendants.

(Supreme Court; New York Special Term,

April, 1899.)

Headnote

Action by an. attorney against a client — Defenses that the attorney • was also acting for another seeking the same relief; that he had promised another attorney part of his fee, and that he had begun an action against the client which damaged, him — Demurrer.

In an action by an attorney upon a written agreement for the payment of a fixed sum for rendering certain services, an allegation of the client that the plaintiff, while. acting as his attorney, was also acting for another who was interested in obtaining the same sort of relief, is- not a defense, as the'fact that the attorney had two clients affords no reason why one of them should not pay what he had agreed to pay.

An allegation that the client was induced to sign the agreement by his former attorney, and that the latter was induced so to advise by the promise of the present attorney to give him part of his fee, affords no defense, in the absence of any allegation that the client was injured by the agreement of the attorneys.

An allegation that the attorney has filed a lien, which has prevented the client from collecting a claim against a city and that the lien has caused the client a loss of interest, cannot be made the subject of a counterclaim, as the. mere fact that one person has been injured because another has begun legal proceedings against him is of itself insufficient to give the. injured person á cause of action.

Demurrer by plaintiff to several portions of the amended answer of the defendant Schreyer.

p. 238

Veeder Van Dyck, for plaintiff.

Alexander Thain, for defendant Schreyer.

This is a demurrer to several portions of the amended answer of the defendant Schreyer. The gist of the separate defense set up in paragraph 11 of the answer, to which separate' defense plaintiff demurs on the ground that it is insufficient upon the face thereof, in that the facts therein alleged do not constitute a defense to the amended complaint, is that the plaintiff, while-acting, as the attorney for the defendant Schreyer, was also acting for another person who was interested generally, in obtaining the same ldnd of relief that the defendant Schreyer was interested in • obtaining. This fact does not constitute a defense. A lawyer has a right to have more than one client and the fact that lie. has-two clients is no reason why a client should not pay what he has promised in writing to pay.

The plaintiff alleges in his complaint, among other- things, that the defendant in writing agreed to ,pay -the plaintiff a certain smb for rendering certain services. In the' defense set up in paragraph 12 of said defendant’s answer the said defendant alleges that hé.was induced to sign the above agreement upon the advise of his -then attorney and that the attorney was induced to give the advice by plaintiff’s promise to give him, the attorney, one-fifth of his, the-plaintiff’s fee. This fact, particularly in view of the fact that the said defendant -does not allege that.he was injured by the action of the plaintiff and of the former attorney of the defendant, does not constitute a defense to plaintiff’s cause of action, or any part thereof. Plaintiff and the former attorney of the defendant had the legal right to make the agreement which the defendant says they did make.

In paragraph 14 of the answer the said defendant sets up certain facts which he pleads as a counterclaim. The substance of the counterclaim is that the plaintiff has filed a lien and taken proceedings which have prevented said defendant from collecting a certain sum of money front the-city of Hew York,'and by reason of such proceedings the defendant has lost interest on said sum to the amount of $5,000. The mere fact that one person is injured because another person begins, legal proceedings against him is not of itself, sufficient to give the injured- person a cause of action against .the person -who brings the proceedings. Biershenk v.

p. 239

Stokes, 18 N. Y. Supp. 854 ; Smith v. Smith, 26 Hun, 573 . These remarles also apply to the "counterclaim alleged in paragraph 15 of the answer.

The demurrer is sustained, with costs, with leave to the defendant to answer anew on payment of such costs.

Demurrer sustained, with costs, with leave to answer anew on payment of costs.