Herrick v. Catley

1 Daly 512, 30 How. Pr. 208

• Court: New York Court of Common Pleas
• Decided: November 15, 1865
• Status: Published

Opinion

By the Court.

Daly, F. J.

plaintiff testified that he was employed by the defendant’s wife to procure a divorce for her from the defendant, and that lie called upon the defendant and had a long interview with him. The plaintiff did not state for what purpose he called upon the defendant, or what the interview between them had reference to. He testified that he called upon the defendant again, and that the defendant requested him to call upon Mrs. Catley, and see if he could not effect an adjustment of the difficulties between them; to try and settle, and report the result to him. That he accordingly called upon her, and reported to the defendant what he had done, who requested him to see her again ; that he did so ; that the defendant then asked him to procure, an interview for him with her, and that he succeeded in bringing one about. That they met, and that the matters in difference were settled, and an agreement made that they should he reconciled. That he told the defendant that his services were of a professional nature, and. he testified that they were worth one hundred dollars.

The defendant testified that the plaintiff called upon him, and said he had come at the instance of his wife, to see if a reconciliation could not he effected between them; that, at the plaintiff's request, he consented to see his wife; that an interview took place, and that instead of a reconciliation being-effected, the gap between them was widened; that they continued to, and still live apart, and that he furnishes his wife with a separate maintenance suitable to her condition. He further testified that when applied to by the plaintiff, he told him that it was of no use fór hini to see his wife, as it was impossible-that any reconciliation could he had between them; ‘ that he never employed the plaintiff, or requested him to render any service ; that he did not seek, nor give his consent to any services rendered by the plaintiff. The justice gave judgment for the plaintiff for one hundred dollars.

Assuming that if was for the justice to determine upon this con-"Tadio tory e' .donee, wifi :h of che two, plaintiff or defendant he would believe, and that in support of his judgment, we must assume that he believed tlie facts to be as stated by the plaintiff) the question is then presented, whether, upon such a state of facts, tlie plaintiff had a cause of action.

While the relation of attorney and client continued between the plaintiff and the defendant’s wife, he could not enter into an agreement to act also as the attorney of the husband in a matter so directly connected with the subject of his employment as that of effecting a reconciliation, and settling the matter in difficulty between them. He had been employed by the wife to procure a separation, and could not, therefore, engage to aetfor the husband as Ms attorney in preventing it. In other words, he could not act on both sides. An attorney, said Chief Justice Hobart, oweth to Ms client fidelity, secrecy, diligence and skill, and cannot take a reward on the other side ( Yardly v. Ellill, Hobart Rep., 8 a; Tomlin’s Dictionary, Attorney ; and in Shire v. King, Yelv. R., 32 ; King v. Shore, Cro. Eliz., 914), it was held that he cannot deal upon both sides except as an arbitrator. The defendant did not say that he would pay him anything for bringing about a meeting between Mm and his wife, and Ms obligation to do so is implied from the fact that he requested the plaintiff to call upon Mrs. Catley, and see if lie could not effect an adjustment of the difficulties between them, and that the plaintiff told. Mm that Ms services were of a professional nature. They could not be in the nature of professional services tor the defendant, while the relation of attorney and client subsisted between the plaintiff and Mrs. Catley, and he could not be entitled to recover for services rendered as arbitrator, for nothing was submitted to Ms decision or arbitrament. The judgment should be reversed.

Judgment reversed.