Myers v. Bachrach

DAYTON, J.

Plaintiffs sued to recover for professional services rendered for the defendant. Aside from the sum of $76, charged for consultations in reference to and the making of a chattel mortgage, for which plaintiffs were paid, the services charged for were rendered in certain bankruptcy proceedings in which the firm of Hines & Strobel were the bankrupts and the defendant was the petitioning creditor. As to these charges the defendant claimed that they were made necessary by reason of- the neglect of the plaintiffs in failing to file the chattel mortgage made by the said firm to defendant, and which defendant claims plaintiffs agreed to file; and defendant further claims that said services were rendered by plaintiffs gratuitously and with a view to doing all that could be done to rectify their error in failing to file said mortgage.

The pivotal question in the case was whether or not the plaintiffs undertook to file said mortgage in Brooklyn, where the mortgagors then resided. Upon this question we are of the opinion that the plaintiffs failed to sustain the burden of proof. There is no dispute but that a serious mistake was made in failing to file the chattel mortgage, and the subsequent services of the plaintiffs were rendered necessary for that reason, arid the contention of the defendant that at the time the chattel mortgage was drawn by one of the plaintiffs the place of residence of the mortgagors was told to him, and the mortgage was left with him for the express purpose of being filed by him in the proper borough, which was not done, seems to be supported by a preponderance of evidence.

Judgment reversed, and new trial ordered, with costs to'appellant to abide the event.

'GERARD, J., concurs.