
    Howard W. Richardson, Respondent, v. Dayton P. Tanner, Appellant.
    First Department,
    November 4, 1910.
    Attorney and client — action to recover for professional services — new-trial — newly-discovered evidence — forged power of attorney — evidence — copy of letter.
    Where a client, sued for legal services rendered in procuring the suppression of a criminal prosecution brought against him in another jurisdiction, denied the retainer and claims that a written power of attorney purporting to have been signed and acknowledged by him and put in evidence by the plaintiff is a forgery, he should, on presenting an affidavit of the notary who took the alleged acknowledgment stating that the person who executed the same was not the defendant but another person, .be granted a new trial upon the ground of newly-discovered evidence if he had no prior knowledge that the document was in existence and had no opportunity of meeting it by producing the notary at trial.
    It is error to admit in evidence a copy, of a letter from the defendant’s alleged attorney to the prosecuting attorney without authentication of any kind, where the original is in existence and no good reason for receiving secondary evidence is given.
    Appeal„ by the defendant, Dayton P. Tanner, from a judgment of the Supreme Court in favor of the plaintiff, entered in thp office of the clerk of the county of Hpw York on the 11th day of February, 1910, upon tlie verdict of a jury, also from an order entered in said clerk’s office on tlie 14th day of February, 1910, denying the defendant’s motion for a new trial made upon the minutes, and also from an order entered on the 25th day of May, 1910, denying a motion for a new trial on the ground of newly-discovered evidence.
    
      L. E. Warren, for the appellant.
    
      Paris S. Russell, for the respondent.
   Dowling, J.:

Defendant appeals from a judgment entered upon the verdict of a jury in favor of plaintiff in the sum of $2,252, and from an order denying a motion for a new trial upon the ground of newly-discovered evidence.

Plaintiff’s assignor, one John C. Gittings, an attorney at law, residing at 'Washington., D. 0., claimed to have been retained by defendant to represent him in certain criminal proceedings in that city, and to have performed services under such retainer for which defendant agreed to pay the sum of $2,000. Prior to meeting the defendant Tanner, Gittings had dealings with one Hennig, who is claimed to have been a representative of Tanner and Homans, both of whom had been arrested in the District of Columbia, charged with a common-law conspiracy to obtain $5,000 from a Dr. Kemp of Washington, an additional charge of carrying dangerous weapons having been made against Tanner, from which latter charge he was finally discharged on payment of a fine of $100. Hennig requested Gittings to act as attorney for both Tanner and Homans, and gave him the details of the charge against them in the presence of both the accused, who, it is claimed, requested him to go ahead and do what he could to prevent the finding of any indictment and to report his actions in the matter to Hennig. Although Gittings called upon the district attorney several times, an indictment was found on March 25, 1907, copies of which were sent to Hennig, and Tanner and Homans appeared and pleaded not guilty. Thereafter Gittings appeared and filed a demurrer to the indictmen t and also arranged with the corporation counsel for the acceptance of the fine of $100 heretofore referred to. After correspondence and interviews between Gittings and Hennig, the former finally met Tanner and Homans in Hew York, and discussed with them the entire situation of the charges against them. Gittings . then told Tanner that his fee for all his services in the matter would be $2,500, on account of which he had received in all $500, which appears to have been paid directly by Hennig, although it is claimed that Tanner had furnished him with funds. Then followed what seems to be the clearest and most direct statement of Gittings’ claim of the agreement between him and defendant. Both Tanner %ud Homans, according to him, said they wanted him to stay in the case, that they did not care anything about the money, but he was to go ahead and do what he could to prevent the case coming to trial. Then Gittings testified that he said : “ Gentlemen, I don’t ' know whether I can accomplish anything for you in this case or not, but I will do this: If I can get this case só arranged with the District Attorney that you will not be required to come there to stand trial — in other words, it would be pigeonholed, by some sort of agreement with the Court and the District Attorney, why then you can pay me $2,000.' Mr. Homans then turned around and said: Mr. Tanner, is that agreeable to you ? He did not use Mr. Tanner ; he called him ‘ Dave,’ or whatever it was — some name I don’t just recall now — ‘will, that.be agreeable to you?’ and he said: ‘Yes, it will be perfectly agreeable to me.’ ”

Gittings claims to have expressly repudiated any use of influence with the district attorney, with whom he had formerly been associated in the practice of law, in hi's negotiations on behalf of his clients. He claims to have had consultations with the district attorney, with the police department, with the attorney’s office, and with a judge of the Criminal Court, as the result'of which an agreement was reached with the district attorney by which the demurrer was to be overruled and the indictment never brought on for trial so long as the accused remained out of the District of Columbia ; the district attorney is claimed to have further agreed on behalf of his successor' in office that the arrangement thus made would be observed. This plan was carried into operation, according to Gittirrgs’ testimony, by means suggested by him to the judge and district attorney and approved by them, which consisted in getting from Tanner and Homans a power of attorney authorizing the overruling of their demurrer, the writing o.f some kind of a letter.by Gittings to the district attorney, some sort of a reply from the latter, and the pinning of their correspondence to the files in the latter’s office. This procedure is claimed to insure to the defendants immunity from prosecution as long as they remain outside the District of Columbia. The power of attorney thus became a most important element in the case, for if genuine it furnished conclusive proof of knowledge on the part of Tanner and Homans of what was being done on their behalf by Gittings, and was an authorization to him to act as their attorney. It was couched in the following terms: “ In the Supreme Court of the District of Columbia.

United States vs. ' • Frank S. Homans and ' David P. Tanner, Defendants. “ City Niagara Falls, County Niagara, State of New York. “ Power óf Attorney in fact.

“We, Frank S. Homans and David P. Tanner, defendants in the above entitled case, do hereby empower, authorize and direct John C. Gittings, attorney at law in Washington, D. C., to act as attorney in fact in the above case and to do any and all acts and things that must or may be done by either of us in our name, place and stead..

“And it being represented to us that if we will consent to an order of court overruling the demurrer and enter pleas in the case that no further action will be taken against us, provided we agree to remain out of the jurisdiction of the said court,

“ We, therefore, do hereby particularly and specifically authorize, empower and direct said Gittings to go into open court and consent to an order of the court to be made overruling the demurrer heretofore filed by. us- and to enter such pleas thereafter in our name and stead and in our behalf as he may think in his best judgment are proper; and said Gittings is hereby expressly authorized and empowered to sign our names to any and all papers in relation to said case, as he may deem proper towards the carrying out of the premises.

“ In witness whereof we have hereunto set our hands and affixed our seal this 24th day of August, 1907.

“ FRANK S. HOMANS [seal]

. “ DAVID P. TANNER [seal]

“ Personally appeared before me a Notary Frank S. Homans and David P. Tanner and acknowledged the aforegoing (sic) instrument to be their act and deed.

“HARRISON GRANGER

“Notary Publio

“ In and for Niagara Co. State of N. T.

“'Official character on file Pension Bureau, “ Washington, D: 0.”"

This paper was inclosed in a printed back bearing "the names of “ Gittings ■& Chamberlain, Attorneys and Counsellors at Law, 482 Louisiana Avenue, Washington, D. C.” It was produced by plaintiff herein and bears no file marks of any kind from any public office. Defendant denied that he had ever signed this paper. It was presented by Gittings to the court in Washington as the basis of the alleged action had there and of course he represented it as the genuine act of Homans and Tanner. It was the only writ ing claimed to have been signed by Tanner and the sole evidence, apart from the testimony of interested witnesses, bearing directly upon the defendant’s knowledge or ratification of what transpired at Washington. The jury were expressly charged that if this were a forged instrument they would be entitled to consider that fact in connection with the .question whether Gittings performed the services he undertook to perform; and that “ if the defendant never agreed or never assented to a plan whereby he was to have the matter closed up in the way it was closed up, without a trial and upon condition that he was to be exiled from Washington, then of course, the plaintiff’s assignor, the lawyer, never performed his part of the agreement because he still stands with an indictment over him.” After the jury had found for plaintiff a motion was duly made for a new trial upon, the ground of newly-discovered evidence, which was that of Harrison Granger, the notary public whose name was signed to the power of attorney, who made affidavit that defendant was not the person who appeared and made acknowledgment of its execution, but that the person who accompanied Homans before the notary and was introduced by the former to the latter as Tanner was another person than the defendant. Defendant had no notice before the trial of this. action that such a paper was relied upon or was in existence, and was without an opportunity of meeting this proof by producing Granger, whose testimony, if true, would entirely destroy the effect of defendant’s supposed execution of the power. In view of the importance of the testimony sought to be introduced, and there being no question of laches nor any claim that the new evidence was known to defendant at the time of the trial, the motion for a new trial should have been granted.

Attention may be called as well to the fact that it was error to receive in evidence, without authentication of any kind, a copy of the letter from Gittings to the district attorney, which was claimed to have been filed in the litter’s office. The original was in existence and no good reason was given for secondary evidence thereof. Ror did it appear that Gittings had actually performed the agreement he claimed to have made, and upon which his compensation was dependent, viz., to have the indictment “pigeonholed” by some agreement with the court and the district attorney. And while it may well, be that an attorney is entitled to recover for the services rendered to his client whether they result in his conviction, in his acquittal, in the acceptance of a plea guilty to some degree of crime, in the suspension of sentence upon him, or, in States where the procedure is recognized, in the entry of a nolle prosequi, yet those services are all performed with the end in view of an open and judicial determination of the charges against'a defendant, and differ widely in their character from such as are directed to obtaining some secret concession, which results in suspending a criminal prosecution without any public action and without the intervention of the court. In the present state of the record, it is impossible to say within which eláss the services claimed to have been rendered herein may fall.

The judgment and order appealed from should be reversed and a new trial ordered, with costs to appellant to abide the event.

Ingraham, P. J., McLaughlin, Laughlin and Miller, JJ., concurred.

Judgment and order reversed, new trial ordered, costs to appellant to abide event.  