Werthy Fabric Co. v. Marvin

135 Misc. 808, 239 N.Y.S. 682, 1930 N.Y. Misc. LEXIS 1006

• Court: Appellate Terms of the Supreme Court of New York
• Decided: February 18, 1930
• Status: Published

Opinion

Per Curiam.

There is no doubt about the correctness of the principle for which defendants, appellants, contend on the authority of Vooth v. McEachen (181 N. Y. 28), that a client who sues his attorney for misconduct in respect of a matter committed to the latter’s care must prove his damages. In the instant case, however, the alleged violation of the client’s instructions was in respect of the collection of a draft. In such a situation the amount of the indebtedness expressed by the draft is prima facie its value in computing damages. The burden of going forward and showing the insolvency of the debtor or other similar defenses thereupon passes to the attorney. (Potter v. Merchants’ Bank, 28 N. Y. 641, 654; First National Bank v. Fourth National Bank, 77 id. 320, 328; National Revere Bank v. National Bank of the Republic, 172 id. 102, 109; Griggs v. Day, 136 id. 152, 161.)

Judgment affirmed, with twenty-five dollars costs.

All concur; present, Bijur, Peters and Frankenthaler, JJ.