Fowler v. Callan

Beach, J. [After stating the facts as above.]—The agreement and the deed were void, the latter being in contravention of the statute then in force (2 R. S. 288 § 72). This enactment prohibits an attorney from agreeing to advance money to any person as an inducement to the placing or in consideration of having placed in his hands any debt, demand or thing in action for collection. It may be questionable whether or not the subject matter of the agreement technically falls within the statutory specification of “ debt, demand or thing in action for collection.” I think “ demand ” has a meaning broad enough to cover it, and “collection” may be held synonymous with enforcement. The case of Voorhees v. Dorr. (51 Barb. 580) seems overruled by Coughlin v. The New York Central &c. R. R. Co. (71 N. Y. 443, 452). As an original question, the agreement in that case would appear to be one for an advance of fifty dollars and expenses to the assignee of the claim, with immunity from costs, as an inducement to place it in defendant’s hands for collection. But the learned court construed the contract differently, and were it not for the controlling decision in' Coughlin v. The New York Central &c. [267] R. R. Co. (supra), I should feel constrained to follow the decision. Legislative enactment, enforced by controlling adjudication, has undoubtedly swept away the law of champerty and maintenance, save an exception contained in the Revised Statutes (Sedgwick v. Stanton, 14 N. Y. 289; Durgin v. Ireland, Id. 822). These decisions seem contrary, to the apt and forcible suggestions of Justice Bocees in Brotherson v. Consalus, (26 How. Pr. 213), which, while not authoritative, are like to cause regret over the absence of statutory enactments preventing attorneys and counselors of the court from encouraging litigation in any and all cases, by actual loans to litigants or agreements to indemnify them against costs and expenses. The judgment should be affirmed, with costs and disbursements. Yak Brukt and Yak Hoesek, JJ., concurred. Judgment affirmed, with costs.