
    DOMINICK MALONE, Appellant, v. ROGER M. SHERMAN, Respondent.
    
      Pleading—rules of construction.—Action by client against attorney for alleged' breach of duty resulting in clients imprisonment on criminal charge.
    
    Before Sedgwick, Ch. J., Freedman and O’Gorman, JJ.
    
      Decided December 17, 1883.
    The complaint was dismissed upon the opening of the trial by the trial judge, and the exceptions ordered to be-heard in the first instance at general term.
    Action for $50,000 damages, alleged to have been sustained by the plaintiff, by reason of the alleged neglect of the defendant as his attorney, in this, that the plaintiff having been convicted of a criminal offense, in the United States circuit court, for the southern district of New York, and the defendant having, at the request of the plaintiff, filed in said court a notice of motion for a new trial on exceptions, and in arrest of judgment, the defendant, without the authority of the plaintiff, and without notice to him, did maliciously, fraudulently, and with intent to injure the plaintiff, withdraw and countermand said notice, and did thereby deprive the plaintiff of his right to appeal. The complaint further set forth, that plaintiff, not knowing of. said withdrawal of notice of motion, did employ counsel to make said motion ; that an affidavit of defendant that he had countermanded said motion, substantially on the ground that plaintiff had failed to pay him counsel fee for making said motion, was used on said argument by the attorney for the United States, that the court denied said motion ; and that plaintiff was actually sentenced and imprisoned, and compelled to pay a. fine of $1,000.
    The court at General Term, said : “It will be presumed that the plaintiff has stated all the facts most favorable to-himself, giving, however, to his complaint a liberal construction with a view to substantial justice between the parties (Code, § 519). The law, however, will not assume in favor of the plaintiff, the existence- of any fact that he has not averred (Cruger v. Hudson R. R. R. Co., 12 JY. Y. 190), or accept as facts, any mere conclusion of the plaintiff himself as to malice, or fraud, or evil intent on the part of the defendant. The conviction of the plaintiff in the United States circuit court, must, in the absence of any. allegation to the contrary, be presumed to have been lawful. The motions on behalf of the plaintiff for a new trial, etc., were, notwithstanding the action of the defendant complained of, argued by counsel on behalf of the plaintiff, and denied by the court; and for all that appears, fully heard oh the merits and denied by the court without any regard to the affidavit made by the defendant or the withdrawal of the notice of motion. The action of the court in denying the motion and in sentencing the plaintiff, must be presumed, in the absence of any allegation to the contrary, to have been lawful, as also his fine and imprisonment in pursuance of said sentence. There is no allegation in the complaint as to the grounds on which the plaintiff desired to appeal and review the verdict of the jury rendered against him, or that lie had any good ground on the law or the facts of liis case for said motion ; nor does he allege that he could have succeeded on such motion but for the action of the defendant complained of.”
    
      Klebisch & Wehle, for appellant.
    
      Roger M. Sherman, respondent in person.
   Opinion by O’Gorman, J.; Sedgwick, Ch. J., and Freedman, J., concurred.

Exception overruled, and judgment ordered for the defendant, with costs.  