The Argus Company, Respondent, v. Henry D. Hotchkiss and William S. Maddox, Appellants

The Argus Company, Respondent, v. Henry D. Hotchkiss and William S. Maddox, Appellants. Third Department, September 26, 1907. Attorney and client — agency—contract for printing case"—attorney ■=• not liable. An attorney negotiating for work to be done in a law suit acts as the agent of a known principal and is not personally liable for the "expense. When an attorney contracts for the printing of a casé on appeal from a judgr' ment of divorce, the printer is charged with knowledge that the attorney cannot be personally interested in the action, and on the failure of the client to pay the attorney is not liable. ' A statement by the attorney that he is personally interested in having the work " done cheaply cannot be construed as a personal promise to pay; Cuestee and Cochease, JJ., dissented. ■ - Appeal by- the defendants,' Henry D. Hotchkiss and another, from a judgment of the Supreme Court in favor of the plain tiff,, entered in the office of the clerk of the county of Albany on the-7th day of February, 1907, upon the verdict of a jury, and also from an .order entered in said clerk’s office on the 16t‘h day of Feb- • ruary, 1907, denying the defendants? motion for a new trial made upon the minutes. i The "action is brought to recover the charges for printing a case upon appeal in the action of Moisted v. Moisted," The defendant Hotchkiss and William MclVlutrie Speer were both members of the Constitutional Convention which met in Albany in 1894. Speer was at that time the- vice-president of the plaintiff company. Both Hotchkiss and Speer were attorneys at law, although Speer was not at that time practicing the profession. In a conversation during the summer of 1894 Hotchkiss told Speer that he had a large case that was to be printed; “ that he was personally interested to have it done cheap and wanted to know what price we would do it for.” Other conversations followed about the size of the case and the price" of the* printing of it. It was agreed that the plaintiff company would print the case for seventy cents per page. Thereafter the case was sent to the Argus Company and was printed by them. The total cost of the printing amounted to $1,207. Of this $950 had been paid by the plaintiff in the case which was printed, to wit, Charles S. Halsted. The defendants were counsel but not attorneys for the defendant in the case of Halsted v. Halsted, which was an action for divorce. In the trial court the plaintiff recovered judgment for the balance of the bill remaining unpaid. From the judgment entered upon the verdict of the jury and from an order denying the defendants’ motion for a new trial this appeal has been taken. Richard B. Aldcroftt, Jr. [William S. Maddox of counsel], for the appellants. Amasa J. Parker, Jr., for the respondent. [MAJORITY — Smith, P. J.:] Smith, P. J.: It was recognized upon the trial of the action and it is undoubted law that an attorney’s negotiation for work to be done in a law suit is the act of an agent for a known principal and for the expense of that service the agent does not become personally responsible. (Bonynge v. Field, 81 N. Y. 159; Judson v. Gray, 11 id. 408, 411; Covell v. Hart, 14 Hun, 252; Livingston Middleditch Co. v. New York College of Dentistry, 31 Misc. Rep. 259; Tyrrel v. Hammerstein, 33 id. 505.) Whether or not" at the time of the making of the contract for the printing of the case defendant Hotchkiss revealed to Mr. Speer the nature of the case and the nature of his interest therein, when the case wag sent to the printer it was a fair notice that the action wag one for divorce, a purely personal action in which the defendants could only be interested as attorneys or counsel. It was not a case involving property rights in which the defendants might have a property interest which would make probable their entering into a personal obligation for the payment of these fees. Mr. Speer must have known as all lawyers know that in this class of ■ cases usually the husband provides for the expenses of the litigation on behalf of the wife. . In case of failure by the husband to pay the same neither the attorney nor the counsel of the wife incurs any personal liability for. the expenses of a law suit unless by special contract. The question is not only what in fáct Mr. Speer understood from the conversation with Mr. Hotchkiss, but what inferences he had the natural right . to draw therefrom, considering the fact, as it appeared to him when the copy was furnished' him that the action in which the papers were to be printed, was purely a personal action between third parties for divorce. The mere procurement of the printing of a case by counsel certainly does not create personal liability. Hor can the statement by Hotchkiss of a personal interest that the work be done chéaply be construed to be a special promise to pay a debt for which he would not otherwise be liable. . I am .unable to find any words which would import any intention on the part of Hotchkiss, and certainly not on the part of Maddox, to be personally liable for this debt. The judgment‘seems to me, therefore, wholly unsupported by the evidence, and with the order should be reversed and a new trial granted, with costs to appellant to abide the event. • Sewell, J., concurred; Kellogg, J., concurred . in result; Chester and Cochrane, JJ., dissented. Judgment and order reversed and new trial granted, with costs to appellant to abide event. •