MARY C. FLYNN and Others, Appellants,
JOHN C. JUDGE, Respondent.
APPEAL by the plaintiffs, Mary C. Flynn and others, from part of a judgment of the Supreme Court, entered in the office of the clerk of the county of Kings on the 19th day of March, 1910, upon the dismissal of the complaint as to the first and second causes of action by direction of the court at the close of the plaintiffs' case on a trial at the Kings County Trial Term.
John Delahunty [S. P. Cahill with him on the brief], for the appellants.
John C. Judge [Frank C. McKinney, Raymond D. Thurber and George I. Woolley with him on the brief], for the respondent.
The plaintiffs' appeal is from a judgment that dismissed them as to the first and second causes of action. The third cause of action was eliminated by adjustment. A decree of the Surrogate's Court removed the plaintiffs as executors and trustees of the estate of their father. The defendant for a time was their attorney and counsel. The first cause of action alleges generally defendant's lack of due care, skill or diligence in the matters submitted to his advice or intrusted to his charge in relation to the administration of the estate. It also specifies instances thereof, and charges that in consequence of these acts and others on the part of the plaintiffs in their representative capacities, there was revocation of their letters and removal of them. It alleges that they had suffered and would suffer great damage and will be deprived of their yearly commissions as executors and trustees, and by reason of the premises the damages are and will be $10,000. The second cause of action alleges lack of due care, skill and diligence in the pre-paration, presentation, and in matters relating to the proceedings to settle judicially the accounts of the executors, so that the account presented was futile and of no benefit to the plaintiffs, but of great loss and damage to them in that they were compelled to pay the entire costs of the proceedings and deprived of their commissions and of their costs and allowances to the amount of $1,904.79.
The theory of the action is negligence. At trial the learned counsel for the plaintiffs said that they were 'merely claiming for bad legal advice,' and again, 'I know of no reason why Mr. Judge should be charged with dishonesty. I am not charging him with dishonesty.' And in his points on this appeal his contention is that all of the acts of misconduct which the surrogate found against the plaintiffs in his decree of removal and revocation were 'due solely to the advice of
the defendant.' Upon the determination of this appeal which challenges the propriety of dismissal at the close of plaintiffs' case, every fair intendment arising upon the evidence must make for them. The burden was upon them to prove the breach of duty and the amount of damages, and they could only recover the damages thus proved. ( Vooth v. McEachen, 181 N.Y. 28.) At trial the counsel for the plaintiffs admitted that the only damages alleged were loss of commissions and moneys chargeable to the plaintiffs by the surrogate, costs of the action and interest and return of counsel fees which they had paid, and other sums of that character--for the moneys which they were obliged to pay into the estate. Under such circumstances the measure of damages is the difference in the pecuniary position of the client from what it should have been had the attorney acted without negligence. (Bevan Neg. in Law [3d ed.]; Wood's Mayne Dam. [ 1st Am. ed.] § 648; Codery Law Relating to Solicitors, 134; Weeks Attorneys [2d ed.], § 319.) The last writer says: 'In actions against attorneys for negligence or wrongs, the debt lost and cost sustained through their negligence furnish, when the action can be maintained, the obvious measure of damages, where this measure definitely exists. In other cases the plaintiff is entitled to be in the same position as if the attorney had done his duty.' So far as the damages relate to the alleged loss of commissions, past and prospective, we think that the dismissal of the plaintiffs should be affirmed. Those damages are too uncertain, not as to the amount but as to their character. In the words of GROVER, J., in Taylor v. Bradley (4 Abb. Ct. App. Dec. 366): 'It is not an uncertainty as to the value of the benefit or gain to be derived from performance, but an uncertainty or contingency whether such gain or benefit would be derived at all.' Even if the professional advice of the defendant had been beyond hypercriticism and the plaintiffs had continued in their representative capacities, there was no certainty that they might not have been deprived of commissions for reasons entirely foreign to the counsel and advice of their lawyer. Commissions are not a matter of right, but rest in discretion. (Matter of Rutledge, 162 N.Y. 31; Matter of Welling, 51 A.D. 355.) Again, it would be almost impossible
to lay the revocation and removal entirely at the door of the defendant. The chief concern of the court in removals is the safety of the trust. (Jessup Surr. Pr. [3d ed.] 1023.) And in the opinion handed down by the learned surrogate it was said: 'Under nearly all of the tests suggested by the counsel for the executors and trustees, the relief prayed for should be granted. He concedes their utter inexperience of business and unfitness for their positions, and tenders this as an excuse for their mismanagement. In my opinion, there is ' a clear necessity for interference' to save the trust property and such misconduct as to show want of capacity or fidelity putting the trust in jeopardy. (Elias v. Schweyer, 13 A.D. 336.)' (The italics are ours.)
But the damages alleged in the second cause of action may be regarded in a different light. The plaintiffs upon accounting were charged personally with the expenses thereof, contrary to the general rule. The specific amount of their personal outlay is not hard to ascertain. If the plaintiffs can establish that this pecuniary loss was due to the lack of due care, skill or diligence of the defendant as a lawyer, in the pre-paration, filing and presentation of the account, we think that the defendant might be held liable. It is not enough, however, to rely upon the revocation of letters and removal, for the plaintiffs might have been charged personally none the less, even if they had been continued in these capacities (e. g., Matter of Gabriel, 44 A.D. 623, and cases cited; affd., 161 N.Y. 644; Matter of Harnett, 15 N.Y. St. Repr. 725; Matter of Long Island L. & T. Co., 92 A.D. 5). In the same opinion from which we have quoted heretofore, the learned surrogate also wrote: 'It is no answer to this application to say that in the end they filed verified accounts which were substantially correct. This was only accomplished by the strenuous efforts of counsel revealing the gross, and as to the executor, William J. Flynn, evidently wilful inaccuracies of the original account, which he endeavored to sustain by confessed perjuries.' Reading those findings of the surrogate which relate more particularly to the account, we perceive that he lays stress upon the many delays and obstacles which were interposed by the executors so that the time that intervened
the application for a compulsory accounting and the filing of the account was nearly six months; that in that account the plaintiffs omitted to account for or to charge themselves with the receipts of the testator's business (which they had continued) from October 18, 1897, to May 1, 1898, but credited themselves and charged against the general assets of the estate sums paid by them for purchases of stock in the conduct of said business and for the expenses of said business during said period of time aggregating upwards of $11,000; that they failed to account for certain amounts received by them for debts due the testator at the time of his death, including one item from the Convent of Mercy amounting to $1,058.38; that they failed and omitted to file proper vouchers in support of the payments and disbursements alleged to have been made by them; that in their account as trustees they credited themselves with disbursements which were also credited in their account as executors; that in neither account they charged themselves with any sums recovered by them or with which they were chargeable as and for interest and income on the personal estate in their hands except $50 for rent of fixtures and $125 interest on deposits; that in ...