People ex rel. Floersheimer v. Purdy

174 A.D. 694, 162 N.Y.S. 70, 1916 N.Y. App. Div. LEXIS 10415

Opinions

Scott, J.:

These are appeals from two orders denying motions to dismiss writs of certiorari sued out to review the assessment of real property in the city of New York for the purposes of taxation.

One proceeding relates to the assessment of relator’s property for taxation in the year 1914, and the other for the year 1915. As substantially the same questions are involved in both appeals they may conveniently be considered together.

The ground for moving to dismiss the writ in each case is that the proceeding was in fact brought and conducted, in behalf of relator, by a business corporation known as L. Tanenbaum, Strauss & Co., Inc., in violation of law. (Business Corporations Law [Consol. Laws, chap. 4; Laws of 1909, chap. 12], § 2a, as added by Laws of 1909, chap. 484; Penal Law, § 280, added by Laws of 1909, chap. 483, as amd. by Laws of 1911, chap. 317.)

Footnotes

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* The two sections specified were both designed to put a stop to a rapidly-growing practice by imper sonal corporations of exercising functions which can properly be exercised only by a duly admitted and licensed attorney who is under the direct supervision of the court and amenable to its discipline. The merits of the legislation, the beneficient purpose intended to be effected by it and the necessity, in the interest of clients and the administration of justice, of its strict enforcement have often been judicially declared, and efforts to evade or circumvent the law have been consistently condemned. Both enactments are directed against the same evil. For brevity we quote from only one of them, to wit, section 280 of' the Penal Law, which provides as follows: “ It shall be unlawful for any corporation or voluntary association to practice or appear as an attorney-at-law for any person other than itself in any court in this State or before any judicial body, or to make it a business to practice as an attorney-at-law, for any person other than itself, in any of said courts, or to hold itself out to the public as being entitled to practice law, or render or furnish legal services or advice, or to furnish attorneys or counsel or to render legal services of any kind in actions or proceedings * *

It appears very clearly from the evidence taken at Special Term in both of these cases upon the motions to dismiss, that this proceeding, including the preliminary application to the tax board for the reduction of the assessment, have been conducted by the corporation of L. Tanenbaum, Strauss & Go., Inc., under a contract for a fee contingent upon success, and that the attorney who appears as the attorney of record for the relator was selected and employed by said corporation, and will be compensated, if at all, by it out of its contingent fee.

The corporation in question was organized in the year 1912 by the present attorney for the relator and two clerks in his office as incorporators, with an authorized capital of $2,000, of which it was proposed to begin business with $500. The purposes of the corporation as stated in its certificate covered a wide field of possible business activities. All that is of interest at present is its authorization “ To appraise all forms of real and personal property and all interests therein and to furnish services in the reduction of taxes and assessments so far as and to the extent that the same may be done and performed by corporations organized under the Business Corporations Law of the State of New York.” That the attempt to procure the reduction of assessments has been an important part of the business of the corporation is shown by the testimony of its president that in a single year as many as 1,000 applications for reduction had been made to the tax board. Under the Tax Law (Consol. Laws, chap. 60 [Laws of 1909, chap. 62], §§ 37, 290)* and the charter of the city of New York (Laws of 1901, chap. 466, §§ 895, 898, 906,, as amd. by Laws of 1911, chap. 455, and Laws of 1913, chap. 324) no assessment can be reviewed by certiorari unless an application for the reduction has first been made to and refused by the tax board. Indeed, it is that refusal by the board which is the subject of review. The making of such an application is, therefore, the first step toward a judicial review. Section 37 of the Tax Law provides that such an application may be made by the person assessed or whose property is assessed, or by some person authorized to make such statement “ and who has knowledge of the facts stated therein. ” In People ex rel. Trojan Realty Corporation v. Purdy (174 App. Div. 702, decided herewith) we have expressed the opinion that while this section will authorize an application by a lay agent if properly authorized and qualified, it cannot be construed as authorizing an application to be made by a corporation agent which has had no prior relation to or knowledge of the property assessed, since such a corporation cannot, in the nature of things have “knowledge of the facts stated.’’ In both of the present cases the only authorized agent to act for the relator in making application to the tax board was the corporation above named, which had never had the property in charge, and the verification of the application in each case recites that it is the corporation which is acting for the owner. The proceeding in each case, therefore, fails, as we think, because in neither was there such an application to the tax board as is required by the statute.

But a.much more serious objection to the proceeding is that the attorney who appears for the relator, although apparently not now a stockholder of the corporation referred to, was employed and retained by it to conduct the proceedings and must look to it for his compensation. This fact is established beyond question notwithstanding the inclusion among the papers on appeal of a formal notice of retainer, which is evidently merely formal and signed in one case a full year after the commencement of the proceeding. When read in connection with the relator’s testimony it is clear that the attorney was not of his selection or even known to him when the retainers were signed. This circumstance, in our opinion, being clearly and explicitly forbidden by the statute above quoted taints the whole proceeding with illegality and justifies the motion for the dismissal of the writ. We cannot better express our own views as to the impropriety of the course adopted in the present cases than to adopt -the language of Mr. Justice G-reenbaum in People ex rel. Holzman v. Purdy (N. Y. L. J. Feb. 25, 1916), a case which presented many of the features of the cases at bar. He said: “ Upon the opening of the trial the counsel for the City of New York asked the Court to consider the circumstances under which this proceeding was instituted and under which the attorney appearing for the relators was retained therein. The Court thereupon took testimony in open court respecting the matter mentioned, and thereafter a motion was made in behalf of the respondent to vacate the order directing the issuance of the writ of certiorari in the above-entitled proceeding and to quash the writ upon various grounds, among others that the order was granted upon the motion of an attorney of this Court who was retained not by the relators, but by one Tribelhorn, a stranger to this proceeding, who is not an attorney at law, under an agreement made between him and the relators, whereby he undertook to take all lawful proceedings to obtain a reduction of the valuation of the premises in question and when necessary to employ attorneys and. experts and to pay the fees of such attorneys and experts, in consideration of which Tribelhorn was to retain one-half of the amount of the taxes saved by reason of any reduction of said assessed valuation secured by him. It is urged in behalf of the respondent that the agreement between the relators and Tribelhorn was unlawful and in violation of the Penal Law, and that the attorney appearing herein was without legal authority to represent the relators; that the writ herein was unlawfully obtained and inadvisedly granted, and further, that the Court was without jurisdiction in the premises. It was established upon the hearing that the contract above described had, in fact, been made, and that the attorney appearing in behalf of the relators was retained by the person who procured the agreement for the relators and not by the relators. The Court has no hesitancy in finding that under the agreement between Tribelhorn and the relators, the former was in effect retained as an attorney to render such services, which are universally known as legal services and which are undertaken only by attorneys at law, duly admitted and licensed to practice as such. Services entirely similar in character to those contemplated by the Tribelhorn agreement were held to be legal services and in violation of the statute forbidding a corporation to practice law. (Matter of City of New York [Ave. A], 144 App. Div. 107.) In Matter of Co-operative Law Co. (198 N. Y. 479, 483) it was held that ‘ the relation of attorney and client is that of master and servant in a limited and dignified sense, and it involved the highest trust and confidence. It cannot be delegated without consent, and it cannot exist between an attorney employed by a corporation to practice law for it and a client of the corporation, for he would be subject to the directions of a corporation and not to the directions of the client. There would be neither contract nor privity between him and the client, and he would not owe even the duty of counsel to the actual litigant. The corporation would control the litigation, the money earned would belong to the corporation, and the attorney would be responsible to the corporation only. His master would not be the client, but the corporation. ’ The foregoing reasoning is equally applicable where instead of a corporation an individual, not an attorney at law, employed an attorney under like circumstances. Section 270 of the Penal Code* inter alia makes it unlawful for any person not duly licensed and admitted to the practice of the law ‘ to practice or appear as an attorney at law ’ or rio make it a business to practice as an attorney at law,’ and declares that ‘any person violating the provisions of this section is guilty of a misdemeanor. ’ It should also be noted that the feature of the Tribelhorn agreement, which obligates him to retain lawyers and experts and pay for their services, contravenes public policy and in itself justifies condemnation of the courts. (Lyon v. Hussey, 82 Hun, 15; Matter of City New York, Ave. A, supra, at p. 109.) Construing the effect of section 280 of the Penal Code,* which prohibits a corporation from practicing law, the learned presiding justice, who wrote the opinion in U. S. Title Guar. Co. v. Brown (166 App. Div. 688, at p. 691), says: ‘True, the statute is not aimed at him (referring to the attorney retained by the corporation) directly, for he is permitted to practice law. But in that practice he accepted a retainer [from] the plaintiff to perform the illegal contracts which the plaintiff had made with third persons, and, in so far as he performed, he rendered himself particeps criminis ’ (citing Arnot v. Pittston & Elmira Co., 68 N. Y. 558, 567, Penal Law, par. 27. †) It follows from what has been stated that the Tribelhorn agreement is illegal, and that the retainer of the present counsel by Tribelhorn in this proceeding was unlawful. * * * The machinery of the law was here set in motion by an attorney at law not employed by the relators and not subject to their control or power of dismissal. It would seem to follow that the attorney had no legal status before the Court to act for the relators, and that his appearance for the relators constituted a serious irregularity which ordinarily would justify the Court in refusing to retain jurisdiction of the matter before it.”

In the case in which Mr. Justice G-reenbaum thus wrote he refrained from dismissing the writ for reasons which do not appear in the present cases. That the facts invested the court with power to dismiss he clearly demonstrated and we find in the present cases no reason why we should refrain from exercising that power.

The order appealed from should be reversed, with ten dollars costs and disbursements in each case, and motions granted, with costs in each case.

Glarke, P. J., Smith and Page, JJ., concurred; Dowling, J., dissented.

Since amd. by Laws of 1916, chap. 254.— [Rep.

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Since amd. by Laws of 1916, chap. 323.— [Rep.

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See Penal Law, § 270. — [Rep.

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See Penal Law, § 280, added by Laws of 1909, chap. 483, as amd. by Laws of 1911, chap. 317. Since amd. by Laws of 1916, chap. 254.—[Rep.

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[See Penal Law, § 27.—[Rep.