Stein v. Schmitz

• Decision Date: 03 September 1948
• Docket Number: No. 4.,4.
• Parties: STEIN v. SCHMITZ et al.
• Court: New Jersey Supreme Court

137 N.J.L. 725

61 A.2d 260

STEIN

v.SCHMITZ et al.

No. 4.

Court of Errors and Appeals of New Jersey.

Sept. 3, 1948.

Appeal from Supreme Court.

Action by Meyer W. Stein, against William Schmitz and others, for damages for alleged malicious injury to plaintiff's standing as an attorney-at-law. From the judgment plaintiff appeals.

Affirmed.

See also 32 A.2d 844, 21 N.J.Misc. 218.

Harry Green, of Newark, for appellant.

John C. Barbour, of Hackensack, for respondents.

BODINE, Justice.

The plaintiff, Meyer W. Stein, sued to recover damages for alleged malicious injury to his standing as an attorney-at-law of this State, arising out of a complaint filed by the defendant William Schmitz in the Supreme Court, charging him with unprofessional, unethical and unlawful conduct.

The defendants, in addition to Schmitz, are Lewis S. Jacobson, a counselor-at-law, and Eugene V. Regalia, an alleged conspirator.

The jury returned a verdict of no cause of action. From the judgment entered, plaintiff appeals.

Reversal is sought solely on rulings on evidence. The rulings complained of come within two headings: (1) admission of alleged hearsay evidence; (2) exclusion of the report of the Board of Bar Examiners.

The questions to be determined are:

1. In an action by an attorney for malicious injury in his profession, where defense is advice of counsel after full and true disclosure by client, and the client himself does not testify, may counsel be permitted to give testimony as to that which his client told him, when counsel is himself a defendant. We think he may.

2. Was the report of the Bar Examiners, completely exonerating plaintiff of charges of unethical conduct and finding that defendant was lacking in good faith or honesty of purpose in making the charges, properly excluded? We think it was.

We do not pass on the sufficiency of the complaint since it was not raised before us.

On December 11, 1940, defendant, William Schmitz, filed a petition in the Supreme Court charging plaintiff with unprofessional, unethical conduct and with unlawfully attempting to extort money from him. Thereafter, the Supreme Court appointed Peter Hofstra, Esquire, to prosecute the charges before the State Board of Bar Examiners. A full hearing was had.

On April 11, 1942, the Board of Bar Examiners submitted a report of their findings, completely exonerating plaintiff of the charges made.

The testimony complained of we think was properly admitted.

'An attorney is not liable with his client, in a joint action of trespass, unless it can be shown that he has gone beyond the strict law of his duty. * * * While he acts merely in his character of attorney, making use of the process of the law to enforce his client's demand, however groundless and vexatious it may be, he is not amenable to suit.' Schalk v. Kingsley, 42 N.J.L. 32.

To establish this defense, it was necessary for the attorney to testify to the facts related to him by his client. The evidence complained of was introduced for that purpose.

It was said by Mr. Justice Case in Rynar v. Lincoln Transit Co., Inc., 129 N.J.L. 525, 528, 30 A.2d 406, 409: ‘If the evidence is legal for one purpose but incompetent for another, it will be admitted and the party disadvantageously affected may summon the court's assistance by request to charge or other appropriate means. Perry v. Levy, 87 N.J.L....