Browning v. Marvin

• Decision Date: 06 October 1885
• Parties: BROWNING v. MARVIN.
• Court: New York Court of Appeals Court of Appeals

100 N.Y. 144

2 N.E. 635

BROWNING

v.MARVIN.¹

Court of Appeals of New York.

Filed October 6, 1885.

N. C. Moak, for appellant, John H. Browning.

Henry C. Wilcox, for respondent, Oliver W. Marvin.

RUGER, C. J.

The complaint counted upon two causes of action, viz., the first being to recover money alleged to have been overdrawn by the defendant in excess of his salary while a clerk in the employ of Domett & Nichols, and the second being upon a note given by the defendant to said Domett for a partnership debt; both causes of action being claimed to have been assigned to the plaintiff. The answer alleged in substance that the claim described in the first count of the complaint had been paid by the defendant, and discharged by an arrangement made between himself and Domett & Nichols before the transfer to the plaintiff; and as to both causes of action that they were purchased by an attorney at law, one Augustus Prentice, of Domett for the purpose of bringing an action thereon, and denied that the plaintiff is the owner or holder of the note, or that it had been assigned to him. The evidence showed that the demands in suit accrued, if at all, to the partnership firm of Domett & Nichols prior to September, 1872, and, if not extinguished by payment, remained their property until December, 1875, when they were transferred by Domett in form to the plaintiff. It also tended to prove that they were purchased by one Augustus Prentice, an attorney at law; that the purchase price was paid by his check; and he stated that he wanted them to use against Marvin because Marvin was suing him. The plaintiff testified that he never had any dealings with Domett, Nichols, or Marvin, and that he did not know Marvin; that he never had the assignment to take charge of it, although he had had it in his hands to look at; that Prentice suggested the purchase to him, but that he, plaintiff, furnished the money to buy the claim, and Prentice had never repaid it to him; that Prentice was his cousin and his attorney in this and other matters. Suit was brought on these claims immediately after their purchase. The evidence also tended to show that by virtue of an arrangement made between Domett & Nichols and the defendant prior to December, 1875, the claim mentioned in the first count of the complaint was, by the rendition of services by the defendant for Domett & Nichols, settled and paid, and his liability therefor released by the firm. No questions except those arising on this evidence were left to the jury, and they were submitted under a charge unobjected to by the plaintiff, save in one respect hereinafter mentioned; and the facts were determined in favor of the defendant.

The verdict cannot now be disturbed unless some material exception was taken by the plaintiff to the charge, or to the reception or exclusion of evidence. We think that there is no such exception. The statute in force at the time of the purchase of these claims forbade any attorney, counselor, or solicitor from directly or indirectly buying or being interested in the purchase of any bond, bill, promissory note, bill of exchange, book debt, or other thing in action, with the intent or for the purpose of bringing any suit thereon. It also provides that ‘no attorney, counselor, or solicitor, by himself, or by or in the name of any other person, either before or after action brought, shall lend or advance, or agree to lend or advance, or procure to be lent or advanced, any money, or any bond, bill of exchange, draft, or other thing in action, to any person as an inducement to the placing, or in consideration of having...