
    Charles G. Patterson, Appellant, v. Seneca D. Powell, Respondent.
    (City Court of New York, General Term,
    March, 1900.)
    Attorney and client — Negligence of former in failing to plead the Statute of Frauds — Counterclaim.
    Where the negligence of an attorney, in failing to plead the Statute of Frauds as a defense to an action brought against his client, results in the client’s entire defeat therein, the latter may subsequently counterclaim his resulting damages against the attorney’s demand for the value of his services in that action.
    Appeal from a judgment of the City Court of the city of New York, dismissing the complaint and awarding the defendant $1,813.97 upon his counterclaim. The action was by an attorney for services; the defense a denial of their value, and a counterclaim for damages for negligence in pleading to a prior action against the client. In that action one Julia M. Crane had sued Seneca D. Powell for a breach of an agreement to take rooms and board for one year from November 1, 1887. The agreement was made on October, 1887. Crane recovered of Powell in that action, the Court of Appeals holding (Crane v. Powell, 139 N. Y. 379), that the agreement was one which, by its terms, was not to be performed within a year. That, as the plaintiff had not pleaded the statute, he could not raise the question under a general denial; and that, having allowed the plaintiff to prove a verbal agreement, a motion to dishnss the complaint, on the ground that the agreement was void, because not in writing, was properly denied. As a result of his defeat, Powell paid Crane $1,352.89, to recover which, with interest, Powell interposed the present counterclaim to Ms attorney’s action for services.
    Walter K. Barton (Henry Major, of counsel), for appellant.
    Robert C. Taylor, for respondent.
   Firzsmcoirs, Ch. J.

In view of the decision of the Court of Appeals in the case of Porter v. Wormser, 94 N. Y. 431, wMch was decided prior to the drawing of the answer by plaintiff in Crane v. Powell, and of the decision of the same court in Hamer v. Sidway, 124 N. Y. 538, decided subsequent to the service of said answer, but before the trial of said action, it was clearly the duty of the plaintiff, as the defendant’s lawyer, to set up in said answer affirmatively the Statute of Frauds, as that was the defense he intended to rely upon, and wMch was not available because of his failure to allege it in the answer drawn and served by him as the defendant’s attorney in said action. His failure to do so was clearly a negligent act, and rendered all of the services, rendered by him as such attorney, valueless; besides, the defendant, because of such negligence, had the right to recover from him all damages consequent upon such negligent act. In this action such damages- (as the record shows) amounted to the sum of over $1,800, set up as a counterclaim herein.

In our judgment the trial justice was right in dismissing the complaint, and directing judgment for the defendant upon the counterclaim, and the same must be affirmed, with costs.

Coklah and O’jDwyee, JJ., concur.

Judgment affirmed, with costs.  