Schmitt v. McMillan , 1916 N.Y. App. Div. LEXIS 8995 ( 1916 )

Scott, J. (dissenting):

I dissent. I think that the complaint is sufficient. It alleges the retainer of defendant, as an attorney, to recover a sum of money claimed to have been due to plaintiff from a debtor whom she names; that defendant so negligently and unskillfully conducted the action upon said claim that the debtor became insolvent before the action was brought to trial and reduced to judgment, and that thereby the plaintiff has been prevented from collecting her claim to her damage. Herein are included, as it seems to me, all of the necessary elements of an action against an attorney for negligence. It is true that the complaint does not state in ■extenso the facts upon which her claim was founded, but this I do not consider necessary in a complaint. Undoubtedly before she can recover judgment the plaintiff must prove both that she had a valid claim against the named debtor, and that but for defendant’s negligence she could have recovered it, or some part of it. (Vooth v. McEachen, 181 N. Y. 28; Lamprecht v. Bien, 125 App. Div. 811.) None of the cases relied upon by appellant go further than this. In none of them is it held that the allegation of the elements of damage is essential to a complaint in a case like the present, or indeed in any other case wherein unliquidated damages are sought.

In my opinion the order was right and should be affirmed.

Smith, J., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, with leave to plaintiff to amend on payment of costs.