Mackler v. Richard Hyde Estate

[David A. Szwak]

Mackler v. Richard Hyde Estate
199 Misc. 837, 105 N.Y.S.2d 276
N.Y. Sup. 1951
March 29, 1951

Separate actions by Albert Mackler and Lee Mackler against Richard Hyde Estate, Inc., wherein recovery was sought for damage done to Albert Mackler by reason of the action of a law firm in attempting to collect a judgment. The Municipal Court of the City of New York, borough of Manhattan, First District, Culkin, J., rendered two judgments in favor of plaintiff, and defendant appealed. The Appellate Term, Per Curiam, held that since the law firm whose actions were complained of had been hired not by defendant but by an attorney retained by defendant to collect the judgment, no liability could be imposed upon defendant for the acts and omissions of that firm.
Reversed and complaint dismissed.
Hammer, J., dissented.


Before HAMMER, EDER and SCHREIBER, JJ.
PER CURIAM.
Defendant retained North American Credit Bureau, a collection agency, and Wray Fleming, an attorney, to collect a judgment obtained against the plaintiff, Albert Mackler, in 1939. The defendant was unaware at the time this arrangement was made that Mr. Mackler had been discharged in bankruptcy and that the judgment had been assigned. Fleming turned the matter over to the law firm of Kalvin & Conway, who served third party subpoenas and restraining orders typing up the bank accounts of the plaintiff. The recovery herein was for the damage done to Mackler by reason of Kalvin & Conway's actions in the matter. Defendant had no contact with Kalvin & *838 Conway and did not authorize them to perform any services. The acts performed by Kalvin & Conway cannot be attributed to the defendant and it is not liable for such acts. Kalvin & Conway were the agents of the collection agency and not of the defendant.
[1] [2] A client who retains an attorney does not thereby authorize said attorney to hire another attorney or delegate his authority to another **278 without the consent of the client. 7 Corpus Juris Secundum, Attorney and Client, § 107. Attorneys retained by a collection agency are the agents of such agency and not of the creditor. Hoover v. Greenbaum, 61 N.Y. 305.
[3] Kalvin & Conway were neither attorneys nor agents for the defendant and could impose no liability on the defendant for their acts or omissions.
[4] Under section 6 of the New York City Municipal Court Code that court is expressly deprived of jurisdiction in actions for malicious prosecution and that it what this case seems to be. Barsotti v. Pierano, Mun.Ct., 157 N.Y.S. 844. There is no need to pursue the question of jurisdiction, however, in view of the conclusion that the defendant is in no event liable for the acts of Kalvin & Conway.
Judgments reversed, with $30 costs as of one appeal, and complaints dismissed, with costs.

EDER and SCHREIBER, JJ., concur.

HAMMER, J., dissents and votes for affirmance.