Waters v. Whittemore
New York Supreme Court
THIS action was commenced before a justice of Chenango county, against the defendant, who was a resident of Madison county, to recover back the sum of about forty dollars which it was claimed that the defendant, who was an attorney, had taken from the plaintiff, by charging illegal fees in certain bills of costs which he had collected of the plaintiff. The gravamen of the complaint was in tort.
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THIS action was commenced before a justice of Chenango county, against the defendant, who was a resident of Madison county, to recover back the sum of about forty dollars which it was claimed that the defendant, who was an attorney, had taken from the plaintiff, by charging illegal fees in certain bills of costs which he had collected of the plaintiff. The gravamen of the complaint was in tort. The defendant, on the return day of the summons, raised the objection to the process that a short summons could not issue in such a case, and asked ■to have the suit dismissed for that cause. This was…
1Opinion of the CourtMason, J.
The 5th section of title 4, of art. 3d, of part 3d, of ch. 10'th of the revised statutes, prohibits an attorney from receiving any other or greater fee or reward for any service than shall be allowed by law; and the 7th section of the same title makes the receiving of such fees a misdemeanor, and subjects the person guilty thereof to treble damages. (2 R. iS, 651, § 7.)
I am of opinion, after a careful examination of the pleadings in this case, that this is not to be regarded-as an action of assumpsit based upon an implied promise ; and if so, then certainly it is not an action for money due…
2Cases cited3 opinions
- Merritt v. LambertNew York Court of Chancery · 1843
- Wallis v. LoubatNew York Supreme Court · 1845
- Waters v. WhitamoreNew York Supreme Court · 1852
3Cited by3 opinions
- Ricker's PetitionSupreme Court of New Hampshire · 1890
- Ex parte LawDistrict Court, S.D. Georgia · 1866
- Ex parte FaulknerWest Virginia Supreme Court · 1866