Patterson v. Powell

31 Misc. 20, 62 N.Y.S. 1035

Opinion

Firzsmcoirs, Ch. J.

In view of the decision of the Court of Appeals in the case of Porter v. Wormser, 94 N. Y. 431, wMch was decided prior to the drawing of the answer by plaintiff in Crane v. Powell, and of the decision of the same court in Hamer v. Sidway, 124 N. Y. 538, decided subsequent to the service of said answer, but before the trial of said action, it was clearly the duty of the plaintiff, as the defendant’s lawyer, to set up in said answer affirmatively the Statute of Frauds, as that was the defense he intended to rely upon, and wMch was not available because of his failure to allege it in the answer drawn and served by him as the defendant’s attorney in said action. His failure to do so was clearly a negligent act, and rendered all of the services, rendered by him as such attorney, valueless; besides, the defendant, because of such negligence, had the right to recover from him all damages consequent upon such negligent act. In this action such damages- (as the record shows) amounted to the sum of over $1,800, set up as a counterclaim herein.

In our judgment the trial justice was right in dismissing the complaint, and directing judgment for the defendant upon the counterclaim, and the same must be affirmed, with costs.

Coklah and O’jDwyee, JJ., concur.

Judgment affirmed, with costs.