Argus Co. v. Hotchkiss

121 A.D. 378, 107 N.Y.S. 138, 1907 N.Y. App. Div. LEXIS 1773

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 26, 1907
• Status: Published

Opinion

Smith, P. J.:

It was recognized upon the trial of the action and it is undoubted law that an attorney’s negotiation for work to be done in a law suit is the act of an agent for a known principal and for the expense of that service the agent does not become personally responsible. (Bonynge v. Field, 81 N. Y. 159; Judson v. Gray, 11 id. 408, 411; Covell v. Hart, 14 Hun, 252; Livingston Middleditch Co. v. New York College of Dentistry, 31 Misc. Rep. 259; Tyrrel v. Hammerstein, 33 id. 505.) Whether or not" at the time of the making of the contract for the printing of the case defendant Hotchkiss revealed to Mr. Speer the nature of the case and the nature of his interest therein, when the case wag sent to the printer it was a fair notice that the action wag one for divorce, a purely personal action in which the defendants could only be interested as attorneys or counsel. It was not a case involving property rights in which the defendants might have a property interest which would make probable their entering into a personal obligation for the payment of these fees. Mr. Speer must have known as all lawyers know that in this class of ■ cases usually the husband provides for the expenses of the litigation on behalf of the wife. . In case of failure by the husband to pay the same neither the attorney nor the counsel of the wife incurs any personal liability for. the expenses of a law suit unless by special contract. The question is not only what in fáct Mr. Speer understood from the conversation with Mr. Hotchkiss, but what inferences he had the natural right . to draw therefrom, considering the fact, as it appeared to him when the copy was furnished' him that the action in which the papers were to be printed, was purely a personal action between third parties for divorce. The mere procurement of the printing of a case by counsel certainly does not create personal liability. Hor can the statement by Hotchkiss of a personal interest that the work be done chéaply be construed to be a special promise to pay a debt for which he would not otherwise be liable. . I am .unable to find any words which would import any intention on the part of Hotchkiss, and certainly not on the part of Maddox, to be personally liable for this debt. The judgment‘seems to me, therefore, wholly unsupported by the evidence, and with the order should be reversed and a new trial granted, with costs to appellant to abide the event. •

Sewell, J., concurred; Kellogg, J., concurred . in result; Chester and Cochrane, JJ., dissented.

Judgment and order reversed and new trial granted, with costs to appellant to abide event. •