Wollard v. Gruberg

281 A.D. 872, 119 N.Y.S.2d 622, 1953 N.Y. App. Div. LEXIS 3602

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 17, 1953
• Status: Published

Opinion

This action for malpractice against an attorney was correctly held to belong upon the Tort-Jury calendar, rather than upon the Contract-Jury calendar. It is true that in Hamilton v. Bannenberg (239 App. Div. 155) this court held that the contractual Statute of Limitations applied where a plaintiff elected to sue a lawyer for breach of contract of retainer, where the lawyer had accepted money upon a promise to prosecute a certain action which he allowed to be dismissed. Here, however, the complaint alleges that plaintiff suffered loss “solely as a result of the negligence of the defendant, as well as breach of agreement to take all steps necessary and proper to protect this plaintiff ”, The contract of retainer established the relationship between these parties, from which sprang defendant’s duty to exercise ordinary professional care, but this duty arose from the relationship rather than from a covenant or promise. In a certain sense, any professional man may be said to agree by implication to use ordinary care, according to the standards prevalent in the locality, in performing the duties of his calling, but that alone does not transform an action for negligence into one for breach of contract. Order unanimously affirmed, with $20 costs and printing disbursements to the respondent. Present-; — Dore, J. P., Cohn, Yan Yoorhis, Breitel and Bergan, JJ.