Lamoreux v. Morris

4 How. Pr. 245

• Court: New York Supreme Court
• Decided: February 15, 1840
• Status: Published

Opinion

Parker, Justice.

This court has held that the attorney is liable for sheriff’s fees, upon the ground that the sheriff is obliged to serve process. (1 Caines, 192; 5 John. R. 255, 368; 4 Wend. 474.) A different rule prevails in Vermont, (1 Ver. R. 101,) but I believe in this state it has never been decided that the attorney was liable for witnesses’, referee’s or commissioner’s fees. In Howell v. Kinsey, 1 How. Pr. Rep. 105, it was decided that the attorney was not liable for referee’s fees. I think the petitioner could not have recovered if he had brought an action against the solicitor. The solicitor received the money for the plaintiff. He was bound to pay it over to the plaintiff, or to account for it on settlement with him. There is no doubt of the plaintiff’s liability to the petitioner.

But the petitioner asks for a remedy by attachment. To this certainly he is not entitled. There is no relation here between the solicitor and the petitioner, as between attorney and client. There is no violation of confidence and no "breach of trust. The money was collected for the plaintiff, and not for the petitioner. The latter had no agency in or control over its collection. The solicitor and the petitioner were both officers employed to perform several and different duties in the progress of the cause, but I do not see that they have any claims on each other. They can apply only to the plaintiff, and not to each other, for compensation.

Motion denied, with costs.