McCurdy v. New York Life Ins. Co.

• Decision Date: 17 November 1897
• Citation: 115 Mich. 20,72 N.W. 996
• Court: Michigan Supreme Court
• Parties: MCCURDY v. NEW YORK LIFE INS. CO.

72 N.W. 996

115 Mich. 20

MCCURDY v. NEW YORK LIFE INS. CO.

Supreme Court of Michigan

November 17, 1897

Error to circuit court, Shiawassee county; Stearns F. Smith, Judge.

Action by John T. McCurdy against the New York Life Insurance Company to recover for services. From a judgment in favor of plaintiff, defendant brings error. Reversed.

Fitzgerald & Barry (Francis A. Stace, of counsel), for appellant.

John T McCurdy, in pro. per.

MOORE, J.

Plaintiff a lawyer, recovered a judgment of $77 against defendant for professional services rendered in a criminal proceeding instituted by the defendant company against one of its agents for embezzlement. A great many assignments of error are made by counsel for defendant company. So far as they relate to the proof of the employment of plaintiff by defendant, we do not think it would be profitable to discuss them, for the fact that defendant knew of and approved of the employment of plaintiff is conclusively shown by the acts of defendant company. The check of the company issued at the home office for $25, payable to the order of Mr. McCurdy, was forwarded to him as a retainer fee, and the company was kept advised of what he was doing; so that, if any testimony upon that branch of the case was improperly admitted, it was harmless error.

The record shows that the work done by Mr. McCurdy was done in preparing a presentation of the facts and the law applicable to the case, and presenting them to the prosecuting officer conferring with the persons representing the company drafting the complaint in justice court, attending the examination in justice court, drafting the information which was filed in the circuit court, resisting a motion to quash the information, and rendering such assistance in the preparation and prosecution of the case as he could render. Upon the trial, Mr. McCurdy withdrew any claim for services in the circuit court. Judgment was rendered upon the verdict and costs were allowed to the plaintiff.

We think there is but one question necessary to discuss; that is, can a lawyer recover for professional services rendered to a corporation, in the preparation and trial of a criminal case, set in motion by the complaint of an officer of said corporation? Counsel for defendant answers this question in the negative, claiming that only the people and the respondent are interested in a criminal prosecution, and that a contract by a lawyer to render services in such a case at the employment of private parties is against public policy and void; citing 1 How. Ann. St. � 560, which prohibits any prosecuting attorney from having the assistance of any counsel "who has received any compensation from any person or persons who are interested in prosecuting the party charged with felony," and 3 How. Ann. St. � 557 which provides, "Nor shall any attorney be permitted to prosecute or aid in prosecuting any person for an alleged criminal offence where he is engaged or interested in any civil cause or proceeding depending on the same state of facts against such person directly or indirectly;" and also citing Meister v. People, 31 Mich. 99; Sneed v. People, 38 Mich. 248; People v. Hurst, 41 Mich. 328, 1 N.W. 1027; People v. Bemis, 51 Mich. 422, 16 N.W. 794; People v. Hendryx, 58 Mich. 319, 25 N.W. 299; People v. Schick, 75 Mich. 592, 42 N.W. 1008. These cases are all criminal cases, tried in the circuit court, and undoubtedly hold that it is unlawful for an attorney to assist in the prosecution of a criminal case, except when he is...