Sultan v. Bailey

BISCHOFF, J.

Pending foreclosure this defendant took title to the property without the knowledge of the attorney for the defendant to the record, in whose behalf he had successfully interposed a counterclaim. This action was brought for the value of the services rendered by him as such attorney, and, the justice having dismissed the complaint for failure of proof at the close of his case, the question presented upon this appeal is whether there was any evidence to charge the defendant prima facie with liability.

It appears that the plaintiff was retained in the foreclosure suit by Mrs. Bailey, defendant’s mother, and a defendant to that record, and that all his dealings were had. with her. At the request of Mrs. Bailey, however, after a favorable finding upon the counterclaim, the attorney (this plaintiff) consented to a discontinuance of the action in aid of a settlement whereby the mortgage debt was reduced by the amount of the counterclaim, and a new loan substituted, the loan being dependent (as the justice had found) upon the discontinuance, which the attorney consented to upon Mrs. Bailey’s promise that his fees should be paid out of the proceeds of that loan. All steps toward obtaining the loan were taken actively by Mrs. Bailey, and this defendant came forward for the first time when her signature to the new mortgage became necessary to conclude the transaction. While there would seem to be no support for the claim that the services in suit were accepted by the defendant with knowledge of the fact that the attorney was acting in her interest, enough is shown to charge her, as principal, "upon the promise that the fees should be paid from the new loan. This promise was made to induce the attorney to forego a lien for his services, and his acceptance was a necessary step in the securing of the loan for the defendant’s benefit. The defendant adopted Mrs. Bailey’s acts when concluding the loan, for she could not accept the benefit of the agency assumed, taking the burdens of that instrumentality; and the promise to the attorney was absolutely essential to the transaction concluded by the assumed agent’s efforts. Rumsey v. Briggs, 139 N. Y. 331, 34 N. E. 929. A prima facie case within the complaint as framed was therefore made out, apart from any question as to Mrs. Bailey’s agency to retain the attorney in this first instance, and the nonsuit was erroneous.

Judgment reversed, and new trial ordered, with costs to the ap-* pellant to abide the event. All concur.