Steinberg v. McKay

• Decision Date: 03 July 1936
• Citation: 3 N.E.2d 23,295 Mass. 139
• Parties: STEINBERG v. McKAY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

295 Mass. 139

3 N.E.2d 23

STEINBERG v. McKAY.

Supreme Judicial Court of Massachusetts, Suffolk.

July 3, 1936

Bill in equity by Louis H. Steinberg against John F. McKay. From a decree granting plaintiff a permanent injunction, defendant appeals.

Affirmed as modified.

Appeal from Superior Court, Suffolk County; Beaudreau, Judge.

John F. McKay, pro se.

L. H Steinberg and M. R. Spelfogel, both of Boston, for appellee.

LUMMUS, Justice.

The defendant appeals from a final decree permanently enjoining him from (1) prosecuting a certain action in the Superior Court against the plaintiff on behalf of one Cora Hunnewell Gates, (2) prosecuting another certain action in the Superior Court against the plaintiff on behalf of the defendant himself, (3) bringing, aiding or advising any other action against the plaintiff on behalf of said Gates or the defendant himself, and (4) holding himself out as an attorney at law or practicing law in any court of the Commonwealth.

The plaintiff, who happens to be an attorney at law, held a mortgage upon real estate owned by said Gates, an elderly woman. Although the plaintiff assigned the mortgage in 1930 to the First National Bank of Boston, on some ground he obtained a final decree on September 29, 1933, enjoining said Gates and the defendant as her attorney from interfering with the plaintiff in his possession and operation of said real estate, and awarding the plaintiff damages exceeding $3,500. Upon the execution issued upon this decree, the sheriff on November 8, 1933, levied upon the equity of redemption of said Gates in said real estate, and on January 3, 1934, sold it on execution sale to one Chait.

In the meantime, on November 21, 1933, the defendant, who is not an attorney at law, but who was acting as attorney for said Gates under a written power of attorney from her, brought an action in the Superior Court against the plaintiff and others, for fraud and conspiracy in depriving said Gates of her equity of redemption in said real estate. A demurrer was sustained, and judgment was entered for the defendants in that case, among whom was the present plaintiff, on October 1, 1934. On March 11, 1935, the defendant, as attorney for said Gates, brought an action against the plaintiff to recover $10,000 alleged to be due as the consideration of the release of the interest of Gates in said real estate and of her claim against the plaintiff for alleged fraud. A demurrer was sustained, judgment was entered in favor of the present plaintiff on April 18, 1935, and a petition to vacate the judgment was dismissed on June 17, 1935. On June 5, 1935, the defendant, acting as attorney for said Gates, brought another action of contract against the plaintiff, to recover $10,000 as the alleged consideration for the execution and delivery by said Gates of certain papers. On July 2, 1935, the writ was abated.

On July 18, 1935, after the bringing of the present bill, the defendant, acting as attorney for said Gates brought against the plaintiff the action referred to in the first paragraph of the final decree. The first count of the declaration alleged that the present plaintiff fraudulently induced said Gates to sign certain papers, whereby she lost the equity of redemption in said real estate. The second count alleged a promise on the part of the present plaintiff to pay said Gates $10,000 as consideration for the signing of a release to the plaintiff and a deed to him of the equity of redemption. The causes of action declared on were the same that were dealt with it in the earlier actions already described. The master finds that this new action brought on July 18, 1935, was brought ‘ for the purpose and with the intention of harassing the plaintiff.’ The defendant proposes to bring another action of some sort against the plaintiff on behalf of said Gates.

When it became apparent, in September, 1934, that the present plaintiff would prevail in the first action for fraud and conspiracy, the defendant began to threaten to get the plaintiff into trouble with the Income Tax Division of the Federal Internal Revenue Department unless the plaintiff would pay the defendant $10,000. The plaintiff pretended to accede to the demand, and the defendant came to his office to receive payment. The defendant signed a paper, agreeing in consideration of $10,000 to protect the plaintiff against all demands for income taxes. Then police officers who had been concealed in the office arrested the defendant. He was indicated, but on his trial was acquitted by the jury. On December 20, 1934, he brought an action against the present plaintiff for false arrest. Two successive demurrers were sustained, and on June 5, 1935, the present defendant was refused permission to amend his declaration. It does not appear that this action went to formal judgment. But on June 7, 1935, the defendant brought a new action of tort against the plaintiff upon the same cause of action, and this is the action referred to in the second paragraph of the final decree.

There is no allegation and no finding that the plaintiff earns his living by practicing law, or that the defendant is unlawfully in competition with him. Although the bill says that the plaintiff is a ‘ practicing attorney,’ it goes on to allege that he is a ‘ substantial business man.’ Because unlawful competition is not alleged or proved, if for no other reason, the plaintiff does not bring himself within the principle that the owner of a franchise, not exclusive in the sence that others may not be granted the same right, may nevertheless in his own right restrain competition by others who have no similar franchise. New York, New Haven & Hartford Railroad Co. v. Deister, 253 Mass. 178, 181, 148 N.E. 590. We need not consider whether that principle applies in favor of a person licensed to practise a profession or trade against one who is not. Wollitzer v. National Title Guaranty Co., 148 Misc. 529, 266 N.Y.S. 184,affirmed Wollitzer v. Title Guarantee & Trust Co., 241 A.D. 757, 270 N.Y.S. 968, and leave to appeal to the Court of Appeals denied 241 A.D. 817, 270 N.Y.S. 987. In the cases not governed by statute in which licensed practitioners have been successful in restraining the unlicensed practice of a profession, the bill has been brought on behalf of the entire class of licensed practitioners. Land Title Abstract & Trust Co. v. Dworken, 129 Ohio St. 23, 193 N.E. 650; Childs v. Smeltzer, 315 Pa. 9, 171 A. 883; Paul v. Stanley, 168 Wash. 371, 12 P.2d 401; Unger v. Landlords' Management Corporation, 114 N.J.Eq. 68, 168 A. 229; Depew v. Wichita Retail Credit Association, Inc., 141 Kan. 481, 42 P.2d 214; Fitchette v. Taylor, 191 Minn. 582, 254 N.W. 910, 94 A.L.R. 356 (lawyers). Sloan v. Mitchell, ...