By the Court.
Robinson, J.
This is an action against an attorney for neglect of professional duty.
The complaint alleges that the plaintiff, in November, 1864, retained and employed the defendant to act for him in examining the title of one Charles G\ Patterson to certain articles of personal property, upon which the plaintiff was about loaning him 5,000 shares of mining stock; to ascertain if there were any prior mortgages or encumbrances, and to draw, procure to be executed and filed, and recorded with the register of the city of New York, a good and sufficient bond and mortgage thereon to secure such loan, and that defendant, for compensation to be paid him, undertook such employment; that the defendant reported the security sufficient and the plaintiff made the loan; that the defendant drew the bond and mortgage and procured the same to be executed by Patterson on the 22d of November, 1864, and promised and agreed to immediately file and record it, so as to render it effectual against subsequent incumbrances, and that he thereby induced the plaintiff to leave the mortgage with him for that purpose; that the defendant neglected to file the mortgage until the 23d day of December, 1864, by reason of which neglect another chattel mortgage upon the same property, dated. December 14, 1864, executed by Patterson to one Hutchings, to secure $11,000, was filed and became a prior lien, whereby the plaintiff’s mortgage had become worthless and he had sustained damages to the amount of $6,000.
These allegations were denied by the answer, which also set [305]*305up that the plaintiff’s mortgage had been fully paid and satisfied ; that the Hutchings mortgage covered other property and more than sufficient to pay both mortgages, and that the Hutchings mortgage was paid and satisfied on or before April 11, 1866.
The cause was tried before Chief Justice Daly and a jury, and a verdict rendered against the defendant for $3,258, which was the estimated value of the mining stock loaned to Patterson.
The testimony of the plaintiff in support of his case warranted the jury (if they gave it credit to the exclusion of the contradictory evidence offered on the part of the defendant), in finding that, at his request, the defendant, who was known to him to have acted as Patterson’s lawyer, undertook to search the records for prior incumbrances, to draw the bond and mortgage and to act in the matter for plaintiff’s “ protection,” and that after the bond and mortgage were signed, defendant asked for money for the revenue stamp and Patterson gave him money to purchase it; that defendant then asked for the fees for filing and plaintiff refused to pay any, saying“ it was a simple matter of accomodation to Patterson and that he ought not to be put to any expense; ” that Patterson then said to defendant, “ all right, John, I will pay it,” that defendant then took the bond and mortgage away with him; that the next day plaintiff asked him for the bond and mortgage and defendant gave him the bond and said the mortgage was on record, that it had been left at the register’s office; that he never paid or agreed to pay defendant any money.
Upon these facts, as testified to by plaintiff, the jury were justified in coming to the conclusion that the defendant, with consent of Patterson, undertook to act for plaintiff in the manner charged in the complaint.
It however appeared without question or contradiction:
1st. That the Hutchings mortgage was paid March 29, 1865.
2d. That plaintiff, on some previous occasion and without the knowledge of the defendant, had received from Patterson his note, dated March 31st, 1865, for $2,600 (the amount the [306]*306mining stock originally cost,) in payment of the mortgage and subsequently, on the 1st of April, 1865, executed and acknowledged satisfaction.
.3d. That plaintiff made this acknowledgment of satisfaction of his mortgage without being influenced by any considertion as to the Hutchings mortgage being a prior lien to his-own, as he never became aware of its having been filed prior to his until in the summer or fall of 1867.
Some testimony was admitted tending to show that this subsequent acknowledgment of a satisfaction piece was given upon or in consequence of defendant’s advice to plaintiff to gi/oe d satisfaction piece for the mortgage and Tceep on good terms with Patterson, and on his assertion that Patterson would pay him.
Question as to the giving of the satisfaction piece arose between the parties from the fact that a Mr. Graydon, a judgment creditor of Patterson for about $7,000, had levied upon the: property, and it was in the custody of the sheriff; that Graydon looked upon both mortgages as bogus, and made to cover up Patterson’s property.
On cross-examination plaintiff withdrew these assertions a& . to the defendant having made any such suggestion,'but says:. “ Mr. Patterson was seated at the desk, writing, and Mr. Robertson (defendant) whispered something in his ear, and he (Patterson) turns immediately to me and said, ‘Arnold, I wish you to make a satisfaction piece of that mortgage that you promised to,” and then stated that all defendant had said, when wanting him to give the satisfaction piece, was that if he (plaintiff) foreclosed that mortgage he would have to replevin the goods, and that he would be put to great expense and would have to give bonds for the previous mortgage and there would be nothing left to satisfy him.
Upon these facts a motion was made to dismiss the complaint which was denied and defendant excepted. This decision in strictness, was justified, as the testimony tended to establish a breach of duty, for which at least nominal damages were recoverable.
The verdict found by the jury was manifestly for $2,500 and interest from January 23d, 1865.
[307]*307Accepting the fact as proved by or on the part of the plaintiff and the conceded facts as to the settlement and satisfaction of both the plaintiff’s and Huteliing’s mortgages, as above stated, as to which there was no question, the verdict cannot be sustained.
1st. Ho substantial injury whatever appears to have resulted from defendant’s, alleged omission to file the plaintiff’s mortgage until the 23d of December, for although the Hutchings mortgage intervened and injury might possibly have thereby happened, none such ensued as that mortgage was paid March 29th, 1865, prior to any attempt of the plaintiff to foreclose his mortgage, and its lien had become perfect as a first mortgage.
2d. The plaintiff, on the 31st of March, 1865, without being influenced by any knowledge or suspicion that the Hutchings mortgage (then satisfied) had ever been a prior lien to his, and without any agency or intervention of the defendant, had accepted the note or absolute promise of Patterson for $2,600 in satisfaction of the obligation secured by the mortgage to return the 5,000 shares of mining stock, and had never attempted to rescind that transaction.
notwithstanding this state of facts, the issue or consideration which appears to have been presented and made the subject of decision by the jury was whether this formal acknowledgment of satisfaction of the mortgage was fraudulently influenced by the defendant’s advice and his whispering of some suggestions to Patterson in reference (as was affirmed), to the subject under consideration.
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By the Court.
Robinson, J.
This is an action against an attorney for neglect of professional duty.
The complaint alleges that the plaintiff, in November, 1864, retained and employed the defendant to act for him in examining the title of one Charles G\ Patterson to certain articles of personal property, upon which the plaintiff was about loaning him 5,000 shares of mining stock; to ascertain if there were any prior mortgages or encumbrances, and to draw, procure to be executed and filed, and recorded with the register of the city of New York, a good and sufficient bond and mortgage thereon to secure such loan, and that defendant, for compensation to be paid him, undertook such employment; that the defendant reported the security sufficient and the plaintiff made the loan; that the defendant drew the bond and mortgage and procured the same to be executed by Patterson on the 22d of November, 1864, and promised and agreed to immediately file and record it, so as to render it effectual against subsequent incumbrances, and that he thereby induced the plaintiff to leave the mortgage with him for that purpose; that the defendant neglected to file the mortgage until the 23d day of December, 1864, by reason of which neglect another chattel mortgage upon the same property, dated. December 14, 1864, executed by Patterson to one Hutchings, to secure $11,000, was filed and became a prior lien, whereby the plaintiff’s mortgage had become worthless and he had sustained damages to the amount of $6,000.
These allegations were denied by the answer, which also set [305]*305up that the plaintiff’s mortgage had been fully paid and satisfied ; that the Hutchings mortgage covered other property and more than sufficient to pay both mortgages, and that the Hutchings mortgage was paid and satisfied on or before April 11, 1866.
The cause was tried before Chief Justice Daly and a jury, and a verdict rendered against the defendant for $3,258, which was the estimated value of the mining stock loaned to Patterson.
The testimony of the plaintiff in support of his case warranted the jury (if they gave it credit to the exclusion of the contradictory evidence offered on the part of the defendant), in finding that, at his request, the defendant, who was known to him to have acted as Patterson’s lawyer, undertook to search the records for prior incumbrances, to draw the bond and mortgage and to act in the matter for plaintiff’s “ protection,” and that after the bond and mortgage were signed, defendant asked for money for the revenue stamp and Patterson gave him money to purchase it; that defendant then asked for the fees for filing and plaintiff refused to pay any, saying“ it was a simple matter of accomodation to Patterson and that he ought not to be put to any expense; ” that Patterson then said to defendant, “ all right, John, I will pay it,” that defendant then took the bond and mortgage away with him; that the next day plaintiff asked him for the bond and mortgage and defendant gave him the bond and said the mortgage was on record, that it had been left at the register’s office; that he never paid or agreed to pay defendant any money.
Upon these facts, as testified to by plaintiff, the jury were justified in coming to the conclusion that the defendant, with consent of Patterson, undertook to act for plaintiff in the manner charged in the complaint.
It however appeared without question or contradiction:
1st. That the Hutchings mortgage was paid March 29, 1865.
2d. That plaintiff, on some previous occasion and without the knowledge of the defendant, had received from Patterson his note, dated March 31st, 1865, for $2,600 (the amount the [306]*306mining stock originally cost,) in payment of the mortgage and subsequently, on the 1st of April, 1865, executed and acknowledged satisfaction.
.3d. That plaintiff made this acknowledgment of satisfaction of his mortgage without being influenced by any considertion as to the Hutchings mortgage being a prior lien to his-own, as he never became aware of its having been filed prior to his until in the summer or fall of 1867.
Some testimony was admitted tending to show that this subsequent acknowledgment of a satisfaction piece was given upon or in consequence of defendant’s advice to plaintiff to gi/oe d satisfaction piece for the mortgage and Tceep on good terms with Patterson, and on his assertion that Patterson would pay him.
Question as to the giving of the satisfaction piece arose between the parties from the fact that a Mr. Graydon, a judgment creditor of Patterson for about $7,000, had levied upon the: property, and it was in the custody of the sheriff; that Graydon looked upon both mortgages as bogus, and made to cover up Patterson’s property.
On cross-examination plaintiff withdrew these assertions a& . to the defendant having made any such suggestion,'but says:. “ Mr. Patterson was seated at the desk, writing, and Mr. Robertson (defendant) whispered something in his ear, and he (Patterson) turns immediately to me and said, ‘Arnold, I wish you to make a satisfaction piece of that mortgage that you promised to,” and then stated that all defendant had said, when wanting him to give the satisfaction piece, was that if he (plaintiff) foreclosed that mortgage he would have to replevin the goods, and that he would be put to great expense and would have to give bonds for the previous mortgage and there would be nothing left to satisfy him.
Upon these facts a motion was made to dismiss the complaint which was denied and defendant excepted. This decision in strictness, was justified, as the testimony tended to establish a breach of duty, for which at least nominal damages were recoverable.
The verdict found by the jury was manifestly for $2,500 and interest from January 23d, 1865.
[307]*307Accepting the fact as proved by or on the part of the plaintiff and the conceded facts as to the settlement and satisfaction of both the plaintiff’s and Huteliing’s mortgages, as above stated, as to which there was no question, the verdict cannot be sustained.
1st. Ho substantial injury whatever appears to have resulted from defendant’s, alleged omission to file the plaintiff’s mortgage until the 23d of December, for although the Hutchings mortgage intervened and injury might possibly have thereby happened, none such ensued as that mortgage was paid March 29th, 1865, prior to any attempt of the plaintiff to foreclose his mortgage, and its lien had become perfect as a first mortgage.
2d. The plaintiff, on the 31st of March, 1865, without being influenced by any knowledge or suspicion that the Hutchings mortgage (then satisfied) had ever been a prior lien to his, and without any agency or intervention of the defendant, had accepted the note or absolute promise of Patterson for $2,600 in satisfaction of the obligation secured by the mortgage to return the 5,000 shares of mining stock, and had never attempted to rescind that transaction.
notwithstanding this state of facts, the issue or consideration which appears to have been presented and made the subject of decision by the jury was whether this formal acknowledgment of satisfaction of the mortgage was fraudulently influenced by the defendant’s advice and his whispering of some suggestions to Patterson in reference (as was affirmed), to the subject under consideration.
The true and only issue presented by the pleadings was his breach of obligation to file the mortgage and the damages legally resulting from any neglect to do so. Yet the case, as presented to the jury, assumed to try the question of his fraud in advising the giving of the satisfaction piece of the mortgage after a full settlement of the mortgage debt between plaintiff and Patterson, in which defendant was not shown to have had any agency, and in presenting for the consideration of the jury his responsibility for some fraud or breach of promise of Patterson in failing to pay his note for $2,600 in such collateral manner as he had engaged when he gave it.
[308]*308A perusal of the case cannot fail to show that, under the alleged breach of defendant’s duty to file the chattel mortgage, he has been made responsible upon entirely different considerations.
Plaintiff did not attempt to show any participation of the defendant in the settlement upon which the $2,600 note was given, nor any .legal evidence of facts warranting any inference that defendant had in any manner induced him to accept it.
The case disclosed no substantial injury to have resulted from defendant’s alleged omission to file plaintiff’s mortgage and warranted no other verdict than for mere nominal damages, and the judge erred in neglecting so to charge.
Under the mere allegation of defendant’s breach of duty in neglecting to file the mortgage, he has evidently been held responsible for a fraud in inducing the plaintiff to acknowledge satisfaction of the mortgage, which was foreign to the case presented by the pleadings and for damages which could not possibly have resulted from the acts complained of.
The several exceptions were well taken and the verdict having evidently been given upon some prejudice or mistake as to the rule of damages which ought to have governed, ought not to be upheld.
The judgment should be reversed and a new trial granted with costs to abide the event.
Judgment reversed.
Present—Robinson, Loew, and Larremore, JJ.