Title Guarantee Trust Co. v. Stemberg

Full title: TITLE GUARANTEE AND TRUST COMPANY, Respondent, v . CHARLES STEMBERG…

Court: Appellate Division of the Supreme Court of New York, Second Department

Date published: Apr 19, 1907

119 App. Div. 28 (N.Y. App. Div. 1907)

103 N.Y.S. 867

Opinion

April 19, 1907.

William O. Miles, for the appellant.

Edward M. Perry, for the respondent.

Present — HIRSCHBERG, P.J., WOODWARD, JENKS, HOOKER and GAYNOR, JJ.

JENKS, J.:

This is an action for services in searching a title. The answer is denial that the services were at defendant's request, that the agreed value was $73 and a defense that the plaintiff offered to make, but did not make, a loan applied for upon the property.

I think that the judgment should be affirmed. There is no doubt that the defendant upon his application to the plaintiff signed an agreement whereby the fees sued for were specified, and wherein it was provided that such charges should be paid whether the title was accepted or not. It is testified, although the defendant denies it, that the entire contract was read to the defendant at the time of the execution. It is established that the work was done and that such charges were for it alone. Each party blames the other in that the loan was not made. The evidence is sufficient to warrant the conclusion that the plaintiff would have made it but for the omission of the defendant to cure within his power certain defects in the title. Moreover, payment for the work was not contingent upon the success of the application because the parties had agreed to the contrary. There is nothing unfair or unconscionable in an agreement that the applicant should pay absolutely for the necessary work of testing the security.

The learned counsel for the appellant makes the point that as the services were in the nature of those of an attorney at law, the relation of these parties was that of attorney and client and, therefore, there was an obligation upon the plaintiff as upon an attorney who contracts with his client under the doctrine of Whitehead v. Kennedy ( 69 N.Y. 462) and like cases. Conceding the relation as analogous to that of attorney and client this rule does not obtain as to mere contracts of retainer whereby the relation is established. ( Clifford v. Braun, 71 App. Div. 432; Boyd v. Daily, 85 id. 581; affd., 176 N.Y. 613.)

JENKS, J.:

Judgment of the Municipal Court unanimously affirmed, with costs.