
    Catharine Couse, Appellant, v. Cyrus W. Horton, Respondent.
    
      Professional misconduct of an attorney—what facts tendió shoio it.
    
    A tenant in common, with her two sisters, of a house and lot worth §1,500, subject to a mortgage for §500, in which house and lot such tenant in common also had an equitable interest of §300 for advances made to her father, the original owner thereof, was advised by an attorney to “ administerate on this home ” and afterwards went to his office and signed a paper, which she supposed related to "administration, but which was really a complaint in an action fora partition of the premises, and, when she afterwards learned that a sale was about to take ' ...place, protested against.it, to which protest the attorney paid no attention.
    
      On the sale the house and lot sold for §1,000, of which §500 and interest .was paid on the mortgage, §837.30 was adjudged to the plaintiff’s attorney for costs, and §110 to certain parties defendant, leaving, after payment of referee’s fees and disbursements, about §85 to be divided among the three tenants in common.
    Held, that the evidence required the submission to the jury of the question whether the attorney had not been guilty of professional misconduct.
    Appeal by the plaintiff, Catharine Couse, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Westchester on the 16t,h day of January, 1897, upon the dismissal of the complaint directed by the court after a trial at the Westchester Trial Term.
    
      E. F. Bullard, for the appellant.
    
      David Wiley Travis [Cyrus W. Horton with him on the brief], for the respondent.
   Goodrich, P. J.:

■ The plaintiff alleges that the defendant, an attorney and counselor of this court, has been guilty of official misconduct in procuring and advising her to unnecessarily commence an action for the partition of a house and lot which had been owned by her father, a widower, who died intestate leaving the plaintiff and the defendants, Agnes Conklin and Ann E. Warren,- hite heirs at law. The plaintiff and Mrs. Conklin resided in the house, a part of which was let to a tenant and was bringing in a small rental. The plaintiff testified that the premises were worth about $1,500, and were subject to a mortgage of $500 held by the defendant, Elizabeth N. Johnson, and that she (the plaintiff) also had advanced over $300 to her father, who had promised her a mortgage on the property. She also contends that the defendant unnecessarily made Mrs. Johnson, the holder of the mortgage on the property, a party defendant, which resulted in the allowance of a bill of costs to her attorney. The plaintiff alleges that the defendant misadvised her in several other particulars which it is unnecessary to state. The partition suit proceeded to judgment, and the property, after several adjournments, was sold for $1,000. The final judgment ordered the payment of Mrs. Johnson’s mortgage of $500 and interest, and the costs of the plaintiff’s attorney, $237.30, and of those of the several parties defendant who had appeared and answered, aggregating $110, leaving, after payment of the referee’s fees, and disbursements, a small surplus, about $25, to be divided between the plaintiff and her two sisters, owners of the fee-.

At the trial of the action, the court nonsuited the plaintiff on the ground that it" did not' appear that the defendant had done any wrong. A careful review of the evidence leaves us -in no doubt that there was sufficient evidence to require a submission to the jury of the question of fact. We have recently had occasion to consider the duties of "attorneys to their clients, in Matter of Demarest (11 App. Div. 156) and Turnbull v. Banks (22 id. 508), and have followed the well-established rule that the burden is upon the attorney to establish affirmatively that his transactions with his client were fair and just; that his client acted on full, information of all .the material circumstances, and that he did not take undue advantage of his client’s complacency, confidence, ignorance or misconception.

The evidence of the plaintiff was that the defendant called at the plaintiff’s house the day after her father’s funeral, at a. time when she was having an interview with her sister, Mrs. Conklin; that he sent for her to come to another part of the house, and said to her : “You had better come up and administerate on this home. If you don’t, your sister, Mrs. Conklin, will make trouble for you ; ” that she subsequently called at the defendant’s office and signed a paper which she did not understand to be a complaint in an action for a partition of the property, but which, as she supposed, related to. administration of the estate; that she afterwards saw the notice ■of sale in the paper, and requested the defendant to stop it; that she asked the defendant to effect a release of -her sister’s interest in the house by payment of her share' therein,- telling him that she had arranged to obtain the money for that purpose; that when she found that the proceedings were to sell the house she remonstrated and ■ .protested against the sale, but the property -was sold against her wishes and the result was that she was deprived of her home. . There were other suggestions as to the amount of costs incurred by the proceedings, to which it is unnecessary to. refer. We think that the evidence of the plaintiff required the submission of the facts to the jury, and that a nonsuit should not have been granted. •

We -desire to be understood as not passing in advance upon the question of any misconduct of the defendant. His own explanation of the facts may place the subject in a very different light. • The only question before as is the one stated, whether there was sufficient evidence to call for a submission of the case to the jury.

The judgment should be reversed and a new trial granted, with costs to abide the event.

All concurred.

Judgment reversed and new trial granted, costs to abide the event.  