Dunn v. Wehle

The defendant, an attorney and counselor-at-law, ' Was retained by the plaintiffs to collect the amount of two certain policies of insurance issued to Patrick Dunn, by the Phoenix Assurance Compány of London. He recovered, a judgment for them against the company for $1,793.73, and then requested them to execute an assignment of it tb him for the purpose of enabling ' him, as he represented, to collect it. 'He then received from the company in settlement, $1,400, of which he offered the plaintiffs $450, which they refused and brought this action to recover the whole amount of the judgment.. The defendant . claims that the *25plaintiffs had agreed to allow him two-thirds of the recovery, as compensation for his services in collecting upon the policies, the claim being a doubtful one, such share to cover all disbursements — the latter amounting to $254 — and that the plaintiffs were indebted to' him besides, in the sum of $200 for services in other litigations.' The plaintiffs denied any agreement to allow defendant two-thirds of the recovery and disputed the other indebtedness. The jury rendered a verdict in plaintiffs’ favor for $750 and defendant appeals. The assignment of the judgment which' defendant requested plaintiffs to execute, expressed as consideration the sum of $800; and plaintiffs received back from him a brief writing in which he agreed to pay them their share of the judgment when collected. He also advanced to them $25 on account.

In the complaint the assignment was attacked on the ground that it was procured by fraudulent representations and was stated to be an authority' to Collect the judgment. The proof on plaintiffs’ part is that defendant told them he wanted them to 'make an assignment for him to collect the money from the company; that he wished them “ to make a collector of him; ” that when the plaintiff Patrick asked him “ Can I not turn it over to my family, to my son, not myself, but any other mah?” defendant answered “ Ho, you cannot. I will have to do it and I will get you a good sum of money. And if you take any money in your hands from the insurance company you will be sent up the river. Q. Did he say why you would be sent up the river? A. That my creditors would send me up the river,” This was explained as referring to certain judgment creditors; and defendant while denying that he so stated on the occasion in question, testified that on another occasion he told plaintiff “ that if he recovered a judgment he must be very careful because he had sworn- in supplemental proceedings he had nothing and. they might examine him again and he must be very careful or they might send him up the river.”

The plaintiff Patrick knew that the paper was in form an . assignment, and also the apparent legal effect of it, for he said: “ How, if I sign my name to his paper, what have I to show for my money, you can kick me out of this office ” and then defendant handed him the brief written agreement already mentioned, saying: “ That is. all you want.” It is, therefore, contended by defendant that plaintiffs fully understood the nature and effect of the instrument and were not misled with respect to it. But they might well rely upon his representation that the effect of it was simply *26“ to make a collector of him ” and believe that it was the proper form for giving him authority to receive the money as he stated; and the suggestion that they understood the effect of the paper does not meet the charge that in order to induce Patrick to make-the assignment to defendant in preference to a member 'of plaintiffs’’ family or another assignee of their own selection, that they could not choose any .assignee but him and if Patrick took the money in his own hands he would “ be sent up the river sure.” This was’ a representation, in effect, that by making defendant.the assignee, Patrick would be protected from his creditors, that if he refused he would be sent to prison; it was certainly untrue; and if the jury believed that it was made as an inducement to enable defendant to get control of the fund in order to retain as much of it for himself as- he thought proper, the charge in the complaint was sustained. The question of fact was for the jury, and as between attorney and client it was eminently a case to be submitted by the court to a jury; and in this case the amount indicates that the jury considered it dispassionately and with the desire to do - exact justice. The verdict disposes also of the issue as to whether plaintiffs agreed to allow defendant two-thirds of the recovery for his services and reimbursement — a claim which must have’ seemed to the jury inconsistent with the consideration inserted by defendant in the' assignment and which was double what he afterwards tendered to the assignor — and also of the issue as to the value of the other legal services for which defendant claimed to be entitled to retain part of the proceeds of this collection.

All the issues in the case were found in favor of the plaintiffs and upon sufficient testimony to- support the finding. We held on a former appeal in this case that the complaint stated a cause of action at law and that it was unnecessary for plaintiffs to resort , to equity in order to set aside the assignment. Dunn v. Wehle, 14 Misc. Rep. 542; 35 N. Y. Supp. 1093. None of the exceptions referred to by appellant requires that the verdict should be disturbed.

Judgment affirmed, with costs.

Bischoff and McAdam, JJ., concur.

Judgment affirmed, with costs.