Looff v. Lawton , 21 N.Y. Sup. Ct. 588 ( 1878 )

Gilbert, J.:

We think the court erred in granting a nonsuit. The statute on which the action is brought (2 R. S., 287, § 68), gives an action against an attorney, counsellor or solicitor for any deceit, with intent to deceive the court, or a party, and makes such conduct a misdemeanor, punishable by fine or imprisonment, or both. The acts or omissions which shall constitute deceit are not defined. There seems to be no good reason for confining the term to common law or statutory cheats. On the contrary, there is every reason to suppose that the Legislature intended otherwise.

The common law, as well as the statute, relating to the offense .of obtaining property by false pretenses, were adequate to the punishment of all such offenses, whether committed by lawyers or laymen. Moreover, such an offense being punishable by imprisonment in a State prison, comes under the statutory definition of a felony. At common law, also, fraud and damage gave a civil action to the party injured. There was no occasion, therefore, for another statute to punish, or to give an action for the “ deceit ” of lawyers, unless the Legislature intended that that class of persons should be liable for acts which would be insufficient to establish a crime or a cause of action against citizens generally. The statute is limited to a peculiar class of citizens, from whom the law exacts a reasonable degree of skill, and the utmost good faith in the conduct and management of the business intrusted to them. An attorney or counsellor who advises ignorant adult owners of land that they. are not competent to convey it, and thereby induces them to employ him to institute a suit in partition, and incur the expense thereof, for the purpose of effecting a sale of the lands, gives them erroneous advice, and thereby misleads them to their injury, and if he is qualified to perform the functions of an attorney, he does it knowingly. To mislead the court or a party is to deceive it; and, if knowingly done, constitutes criminal deceit under the statute cited. (Verplanck v. Van Buren, 11 Hun, 328, and cases cited.)

y If a jury should find that the conduct imputed to the defendant was deceit, I apprehend their verdict would not be disturbed. When the attorney or counsellor, makes a profit by means of such deceit, it is not unreasonable to conclude that the advice was given \.with that motive and for that object. That makes out the guilty intent. In every point of view, the case seems to us to be one . which should have been submitted to the juiy.

The judgment and order denying a new trial must be reversed, and a new trial granted, with costs to abide the event.

Present — Barnard, P.J., Gilbert .and Dykman,. JJ.

Judgment reversed and new trial granted, costs to abide event.