Hale v. McDermott

I concur in the result on the ground that the plaintiff could at least recover the excess charge under section 449 of the Code of Civil Procedure, as the contract he made with the stenographer was for the benefit of another.

Aspinall, J. concurs.

Judgment reversed and new trial granted, with costs to abide the event.

Plaintiff requested defendant, an official stenographer of the Municipal Court, to furnish him with a transcript of the minutes in a summary proceeding, in which plaintiff acted as the attorney of record. Plaintiff advanced fifteen dollars for this service, and afterwards was repaid two dollars, leaving a charge of thirteen dollars which plaintiff claims was excessive.

*53Plaintiff sued under the statute which declares that an officer or other person who demands or receives any fees or compensation greater than that allowed by law “ is liable to an action in behalf of the person aggrieved, in which the plaintiff is entitled to treble damages.” Pub. Off. Law, § 67; Code Civ. Pro., §§ 3281, 3282.

The trial justice denied any recovery, apparently on the ground that, as plaintiff acted as an attorney in a proceeding in which his principals appeared on the record, only they could maintain this action. He, therefore, gave judgment for defendant, and plaintiff has appealed.

Such restraints upon officials are ancient. The statute (3 Edw. I, c. 26) against extortion, besides direct punishment, gave the person from whom the money had been extorted a remedy by action for double value. The act 2 Henry IV (c. 3) allowed the chirographer four shillings for the writing of every fine levied in the Common Pleas, upon pain, if he take more, of loss of office, imprisonment “ and to pay the party grieved his treble damages.” 2 Co. Inst. 150. Where there was an overcharge for fees to prove a will, Coke said of a like statute, “ the act ought to be expounded to suppress extortion, which is a great affliction and impoverishing the poor subjects.” Neale & Rouse’s case, 13 Co. Rep. 24, 26.

The “ person aggrieved ” is the one whose money is withheld, who is thus directly injured by the excess taken, and may be the attorney himself, instead of his principal. See Wehle v. Loewy, 2 Misc. Rep. 345.

Even in the more technical sense in which a right to appeal is limited to a “ person aggrieved ” it broadly includes any one “ having some pecuniary interest or some personal right, which is immediately or remotely affected” (Lawless v. Reagan, 128 Mass. 592), and includes those standing as legal representatives of others. Green v. Blackwell, 32 N. J. Eq. 768.

If the payment exacted for shorthand notes is beyond the statutory limit, it would not ordinarily be taxable, and, if submitted to by the attorney, its repayment might in a subsequent accounting be properly resisted by the client.

*54The legislature provided this remedy as a penalty for misfeasance of all officials and others in a position to make ex-actions. The courts should not construe it so as to deprive those who directly make, and suffer by, such overpayments. While ordinarily an attorney acting for a client of record is not personally liable for stenographer’s fees (Bonynge v. Field, 81 N. Y. 159), or for printing a brief (Livingston Middleditch Co. v. N. Y. College of Dentistry, 31 Misc. Rep. 259), it does not follow that an attorney who is forced to submit to an excess charge must sue only in his client’s name. Such a holding would often defeat the remedy, especially where the client’s money had not been advanced, and the entire transaction had been that of the attorney.

It is well settled that statutes, fixing a fee for a folio of 100 words are not satisfied by arbitrary and excessive estimates of certain folios in a page space (11 Cyc. 127, n. 95), but the legal charge must be based on the words transcribed. Wright v. Nostrand, 58 How. Pr. 184; Cavanagh v. O’Neill, 20 Misc. Rep. 233. Where, however, the carbon copy of the transcript is supplied to, and retained by, the attorney, he cannot refuse liability for this second copy on the ground that it had not been expressly ordered.

As there must be a new trial, it is pointed out that plaintiff’s official position under the city charter, and the hours devoted by him to his official duties, were quite irrelevant, as the trial justice repeatedly declared; yet the proceedings were improperly incumbered with such evidence, which could in no way affect the merits of the controversy.