Day v. Reynolds , 30 N.Y. Sup. Ct. 131 ( 1880 )

Learned, P. J.:

One O’Donnell, by his agent Winslow, applied to plaintiff for a loan on bond and mortgage. Plaintiff told Winslow to procure a proper search from the county clerk’s office, and, if the property was clear, O’Donnell could have the money. Winslow acted for O’Donnell, and-obtained such a search. ■ Plaintiff did not pay for the search. The search ivas made by defendant, then county clerk, and was brought to plaintiff by Winslow. On receiving the search, and in reliance thereon, plaintiff lent O Donnell the money, through Winslow. • At the time of making the search and of the lending the money, there was on record a deed from O’Donnell, conveying the land covered by the mortgage, which deed was not mentioned in the search. The plaintiff has, therefore, been unable to collect his money on the mortgage, and O’Donnell is not solvent. The question is whether defendant is liable to plaintiff for the negligence of omitting'the deed from the search.

This question, or one very similar, has recently been decided in the Supreme Court of the United States. (Savings Bank v. Ward, 100 U. S., 195.) There A., an attorney employed and paid by B., to examine and report on B.’s title to land, gave a certificate that B.’s title is good, and the property unincumbered.” C., with whom A. had no contract, relied on this certificate, and lent money to B. on the land. The land proved to be incumbered. It was held that C. could not recover from A. The court held that the obligation of the t attorney was to his client and not to the third party. Three of-the justices dissented. And it is to bo noticed that, in the dissenting opinion, they say that the lawyer who gives liis client a certificate, “ which he knows, or ought to, know, is to be used by the client in some business transaction with another person as. evidence, of the facts certified to, is liable to such other peí son for,” &c.

Thus the dissenting judges placed their dissent on the fact that the lawyer, in that ease, ought to have known that his client was to use the certificate in a business transaction with some-other- person. Now, there is no reason, without proof of the fact, why this defendant should know that O’Donnell or Winslow, his agent, was to use this search in a transaction with the plaintiff or with any one else.

■ One may procure a search of the title to his land for his own satisfaction as well as for use-in procuring a loan. Hence, we think .that the obligation which the defendant incurred' was to O’Donnell; for whom, through Winslow, the search was made.

Nor do ive 'think that the present case iá to be governed by a different rule from that of the case cited, on the ground that the defendant in this is a county clerk, and in that was an attorney. There is no reason why the liability of the one should be extended to those with whom he has no dealing, any more than should that of the other. The doctrine of Hover v. Barkhoof (44 N. Y., 113) is not in conflict with this view. That holds only that public officers are liable to one specialty injured by their negligent performances of duty.

But the question whether the plaintiff in this case has been injured by. defendant’s negligence depends oil the very, point under discussion; that is, whether defendant owed the plaintiff any duty.; or, in other words whether the search was quasi negotiable ; so that any one into whose possession it shouíd come might rely upon it-as an official statement made by defendant to him. -, •

Of course the plaintiff has not been injured by the defendant’s negligence, unless he had a legal right to rely on the defendant’s search, just as if it had been made for him, at his request. If the claim of the plaintiff is correct we do not see where the liability of the defendant will .end. In any future negotiations which might be had with a person in actual ignorance of the mistake in the search, this search might again be used and the defendant would again, be liable to the person who should trust to it.

¥e think, that on principle and on authority the judgment was right and should be affirmed, with costs.

Present — Learned, P. J., Bookes and Follett, JJ.

Judgment affirmed, with costs.