Goldberg v. Bosworth
| Decision Date | 26 May 1961 |
| Citation | 29 Misc.2d 1057,215 N.Y.S.2d 849 |
| Parties | Harvey GOLDBERG v. Benjamin BOSWORTH. |
| Court | New York Supreme Court |
Sam Steigbigel, New York City, for defendant.
Ira Helman, Brooklyn, for plaintiff.
In a malpractice action brought against an attorney-at-law by a named devisee, who was allegedly deprived of his devise as a result of defendant's negligence in causing plaintiff to act as an attesting witness to the execution of the will, defendant moves for judgment under Rule 107, subd. 5, Rules of Practice, upon the ground that the cause of action did not accrue within the time limited by law for the commencement of an action thereon. Since the argument of the motion the plaintiff has served an amended complaint. By consent of the parties it is the amended complaint, now alleging three causes of action instead of one, which the court presently has under consideration.
The first and second causes of action are grounded in negligence, while the third seeks to allege an action in fraud.
The facts are simply stated in the complaint. In January 1953 the plaintiff and his mother engaged the professional services of the defendant to prepare a last will and testament for the plaintiff's mother. The said will included a devise of specific real property to the plaintiff. The defendant 'negligently requested the plaintiff to be an attesting witness to the will.' Presumably at about the same time as the hiring, plaintiff did act as one of two attesting witnesses to the execution of the will. The defendant retained possession of the will thereafter, though for what purpose is not revealed. Plaintiff also alleges as negligence, in his second cause of action, that 'holding the will and not informing the plaintiff or the plaintiff's mother' that the devise to the plaintiff was void by virtue of plaintiff's having acted as a witness thereto. About seven years later, in December 1959, the mother died. The will was thereafter, in January 1960, filed for probate in the Surrogate's Court. It was then that plaintiff allegedly discovered that the devise to him had been voided by having acted as an attesting witness. As a third cause of action the complaint alleges, without other supporting evidentiary facts, that the plaintiff was damaged 'by reason of the deceit of the defendant in connection with the possession of the will from the time of the execution of the will to the time of the filing of the will and the defendant's actions prior to and subsequent to the death of the plaintiff's mother.' Under the foregoing 'deceit' allegation, plaintiff demands treble damages pursuant to Section 273 of the Penal Law.
On this motion plaintiff argues that no actionable wrong was committed at the time the will was drawn. He claims that 'the cause of action accrued only when the plaintiff suffered the actual damage,' and that 'injury was not produced until the death of the testatrix and the filing of the will' (Pltf. Attorney's Aff. par. 6) . Plaintiff contends, quoting from Schmidt v. Merchants Despatch Transportation Co., 270 N.Y. 287, 300, 200 N.E. 824, 827, 104 A.L.R. 450, that a cause of action 'accrues only when the forces wrongfully [sic--lawfully] put in motion produce injury.' Plaintiff's principal argument appears to be that defendant was under a duty during the seven-year period, when he had possession of the will, 'to contact the testatrix or the plaintiff and advise either of them that the will was defective,' * * * 'that the negligence of the defendant continued during the period,' and the 'defendant's failure to avert danger to the plaintiff's property constituted further and continuing negligence.'
The pivotal point as raised by the motion is the timeliness of the commencement of the plaintiff's action which was instituted by service of the summons on January 16, 1961, almost eight years after the will was prepared and executed and about one year after the death of the testatrix. That question in turn depends upon when the plaintiff's action accrued. The defendant asserts that the action accrued when the charged negligence allegedly occurred in January 1953 upon the execution of the will. The plaintiff urges that defendant's negligence, by having possession of the will and by not notifying the plaintiff or the testatrix of the will's defect, continued during the seven-year period that the will remained in defendant's possession.
It is undisputed that an attorney employed to prepare a written instrument is responsible for any loss sustained by his client as a result of his negligence in so doing (Degen v. Steinbrink, 202 App.Div. 477, 195 N.Y.S. 810, affirmed 236 N.Y. 669, 142 N.E. 328; Stein v. Kremer, Sup., 112 N.Y.S. 1087, n. o. r.; see also Annotation 43 A.L.R. 932).
Concerning an attorney's malpractice it has textually been written that 'As a general rule, in the absence of fraudulent concealment, where an attorney at law is guilty of negligence or breach of duty in performing services for his client, the client's cause of action accrues and the statute begins to run at the time when the negligence or breach of duty occurs, not at the time when it is discovered or actual damage results or is fully ascertained, and it is immaterial whether the remedy invoked is assumpsit or a special action on the case, for the gist of the action is the attorney's breach of contract to use diligence and skill, and the subsequent damages give no new cause of action.' 54 C.J.S. Limitations of Actions § 135c, p. 57.
The complaint alleged a contract between plaintiff and defendant. It may be reasonably inferred from the allegations that the agreement, made also with the testatrix, required defendant to include in the will the specific devise to the plaintiff. The charge against defendant is that he 'negligently requested the plaintiff to be an attesting witness.' In substance, therefore, defendant is accused of having failed to use diligence and the skill required and expected of an attorney-at-law in the execution of the will. While no date is specified when the will was signed and attested, it may be assumed for the purposes of this motion that it was executed on or about January 30, 1953, the date when defendant was retained. Consequently the breach of duty, the negligence, occurred on that date.
While plaintiff acknowledges that defendant's negligence took place on that date, he denies that any damage occurred at that time. In this respect the court must disagree with such conclusion and finds instead that damages did result, as related in the complaint, upon the occurrence of the defendant's alleged negligence, at least nominally and at least equivalent to the value of the cost attendant to having a new will prepared and executed. The statute of limitations 'runs, and the cause of action is deemed to have arisen, when the breach resulting in the damage occurred,...
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