Wille v. Maier

• Decision Date: 02 June 1931
• Citation: 256 N.Y. 465,176 N.E. 841
• Court: New York Court of Appeals Court of Appeals
• Parties: WILLE v. MAIER.

256 N.Y. 465

176 N.E. 841

WILLE

v.MAIER.

Court of Appeals of New York.

June 2, 1931.

Action by Martha Wille against Ira Maier. From a judgment of the Appellate Division, First Department (232 App. Div. 798, 248 N. Y. S. 904), unanimously affirming a judgment entered on a verdict of a jury in favor of plaintiff, defendant appeals, by permission of the Court of Appeals.

Affirmed.

Appeal from Supreme Court, Appellate Division, First Department.

Jay Leo Rothschild, Alexander L. Strouse, and Louis Rivkin, all of New York City, for appellant.

Irving D. Lipkowitz and Claude L. Gonnet, both of New York City, for respondent.

POUND, J.

The complaint states a cause of action against the defendant as an attorney at law, based upon fraudulent and dishonest advice given by him to plaintiff to induce her to sign an agreement for the assignment of a lease.

Martha Wille, the plaintiff herein, had leased property in New York city known as 66 West Fifty-First street for a period of twenty years. The lease contained a provision forbidding the lessee to sublet the property. Ira Maier, the defendant herein, the president and principal stockholder of Tyler Hill Corporation, approached plaintiff with an offer on behalf of the corporation to take over her lease for an annual payment largely in excess of the rental provided for in the lease. She signed an instrument in writing providing for the transfer of the lease to Tyler Hill Corporation, together with the consent of the owner. She was unable to perform her contract for the reason that the landlord refused to give his permission for the transfer of the lease. Thereupon Tyler Hill Corporation brought an action for specific performance against her, and, in lieu of specific performance, obtained a judgment against her for $15,000 damages for her failure to perform. Plaintiff had defended the action on the ground that it was induced by fraud in that the corporation, by Ira Maier, its representative, had advised her that the paper she signed contained a provision that it should take effect only if she could obtain the consent of the landlord to the assignment of the lease. The court found that she was well aware of the terms of the lease forbidding her to sublet, and that the only question remaining was the amount of damages. Thereafter she paid $10,000 in settlement of the judgment, and gave the corporation a general release, and then brought this action against Ira Maier, alleging that in the negotitations leading up to the transfer he undertook to act as her attorney and, as such, erroneously and wrongfully advised her that she could make the transfer without her landlord's consent, with the result that she was cast in judgment for having signed the lease, and incurred legal expenses in defending the action for specific performance. On the trial of the action, she testified that Maier said to her: ‘I am a lawyer, I know the owner cannot refuse the consent;’ again, that he said: ‘You may take a lawyer, but it is not necessary. I am a lawyer, I protect you, I take care of everything;’ and again, ‘Mrs. Wille, you can safely sign it, I protect you in every way. I am a lawyer and I protect you in every way, so you can safely sign it.’ The jury believed her statement and she recovered a judgment against the defendant for upwards of $15,000 damages, this sum including the $10,000 which she paid in settlement of the judgment against her, and a charge of $5,000 for attorney's services.

The question is whether defendant may be regarded as two distinct entities, viz., as agent for his company and as attorney for plaintiff, so that his representations in the latter capacity may be the basis of an independent cause of action against him, although the corporation has been exonerated on the issue of fraud.

The advice thus found to have been given obviously was very bad and wicked as the prohibition against subletting was absolute, as both plaintiff and defendant well knew. He advised her that, nothwithstanding, the owner would be compelled to consent. As he agreed to protect her in every way and dissuaded her from seeking other legal advice, the defendant does not greatly question that he is concluded on the facts by the verdict as to the relation of attorney and client, but relies as matter of law upon the prior judgment in favor of the defendant's corporation and against plaintiff, which he claims is res adjudicata.

It is settled law in this state that ‘A judgment in one action is conclusive in a later one, not only as to any matters actually litigated therein, but also as to any that might have been so litigated, when the two causes of action have such a measure of identity that a different judgment in the second would destroy or impair rights or interests established by the first. * * * It is not conclusive, however, to the same extent when the two causes of action are different, not in form only * * * but in the...