Garrison v. McGowan

By the Court, Wallace, C. J.: 1. There is not even the slightest evidence of fraud upon the part of Moore nor of Edmonds, nor, indeed, of any other person, in the proceedings resulting in the judgment in favor of McGowan and against Garrison. Edmonds, as the attorney of McGowan, had no relations with Garrison, nor with Pratt, his agent, which involved the duty upon his part, to consult with the latter or give him any special notice of the pendency of the suit of McGowan against Garrison. That duty belonged to Moore, who was the attorney of record for Garrison in that action, and Moore testified that he distinctly notified Pratt (who had, in the meantime, become the agent and attorney in fact of Garrison,) of the pendency of the suit of McGowan v. Garrison, and that this notice was given before the sale of the property had taken place, and in ample time to have prevented the sale. Moore was cross-examined by Pratt, at the trial, and being inquired of as to the fact of his having given him this notification,, said: “I went to your office; I opened the door and went in. You were standing by the table talking with a gentleman. I mentioned to you there was the suit of McGowan v. Garrison, a street assessment suit, which ought to [599]"be attended to. You stopped me, put your hand up, and .said, ‘I know all about it; I will attend to it.’ That is all ;you said, sir, and I went out.” If, as Pratt testifies, he .■did not comprehend the import of this distinct notification '■ given him by Moore, that circumstance would not tend to 'show that Moore was acting fraudulently or in bad faith in attempting to bring the matter to his attention. That Pratt did not understand Moore is rather to be attributed to a possible indisposition upon his part to listen, as he testifies that at that time, for particular reasons he “did not wish to have any particular conversation with Mr. Moore beyond what was actually essential.” Moore certainly seems to have done his whole duty in giving, or endeavoring in good faith to give, information to Pratt, which, had it been listened to, would have protected Garrison from the subsequent loss of his property.

2. Moore, although he had not in fact been admitted to ^practice in the Courts of this State, by order entered in the ■usual manner, had been regularly admitted an attorney and • counselor of all the Courts of the State .of ¡New York, at a ■general term held in the city of New York on the 25th day of November, 1862, and might have been admitted to practice in the Courts of this State upon motion. This motion he believed had been made, and the usual order of admission obtained; and, acting upon that belief, he had been accustomed to appear in the Court below as an attorney and counselor, conducting business there without challenge or question from any quarter. He had been habitu.ally recognized by the Court as a member of. its bar. He was, therefore, in any view, de facto, an officer of the Court, and the validity of his acts as to third persons cannot collaterally be called in question. The appearance of the defendant, entered by Moore as his attorney, in the action of McGowan v. Garrison, must be regarded, therefore, as of the same import, in all respects, as though Moore had "been admitted to practice in the Court below by the entry of the usual order of admission.