The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1879-01-10
THE COURTS.
A Clients Complaint and a
Lawyers Vindication.
INTERESTING WILL CASE.
Refreshing Arctic Goodness OF a
Railway Pickpocket.

The suit Of Noah Wheaton against Richard SsNew-
combe. trial in the Superior Court before Judge
Freedman and jury, came yesterday to sudden
termination. 1t suit brought by Wheaton, a
former client of Mr.. Newcombe. to recover treble
damages. upon the ground that the latter was guilty
OF deceit in not fairly and fully accounting
for money collected by him at the end of
a long Litigation. Mr.. Newcombe denied the
allegations of deceit, and insisted that he
had faithfully accounted and paid the amount
due to Mr.. wheaton's assignee. The matter was no.
ticed before when an application was made to Judge
Van Brunt aAnst Mr.. Newcombe. when the Judge re-
voked his ORDER characterizing the proceeding
blackmailing one This action then brought. and
ut the close of the evidence ex-Judge Fullerton Of
counsel for Mr.. Newcombe. moved to dismiss the
complaint. Judge Freedman said that he thought
Mr. Newcombe was entitled to stronger vim
dication than that. and directed verdict
for the defendant. 1T is case, / think"
said Judge Freedman. "for the direction OF a
a conflict of testimony should not hesitate to SUBJ
init it to the jury, especially have always consd
cred it the duty of the courts to closely scrutnze
transactions between attorney and client. But above
the conflict which exists the fact appears that even
If the plaintiff at the time of the settlement the
owner of the claim, fact that is disputed by the de-
PENDANT, he must have known that the sum of
$113 Al appearing in the account as having been re-
covered did not in fact represent the whole amount
collected. This sum simply represented the amount
of plaintiffs original claim with interest. 1t appears
in evidence that the judgment as entered September
o. 1873 81 63S 05 and that the Judgment of af
rmance entered in March, 1874 was for S93 81. These
judgments matters of record and easily accessi
Bile. The moneys due upon these judgments the
plaintiff, by written instrument assigned Decem-
Der .. 1874 to Quackenbush, his son-in-law, who
then and now is an attorney-at-law, and who
may be supposed to know something about such
matters. Now. both the plaintiff and Quackenbush
admit that they had prior conversations with the
defendant about the amount that would eventually
To plaintiff. and Mr., OuackepbuSh has lust
admitted that Mr. Wheaton told him that tho
judgment was from $1,000 to $780, Thus it APP
pears that they kept themselves posted concerning
the money that was to come eventually to Mr. Whea-
ton. Shortly before the settlement with the de-
ment took place, by which Quackenbush re-
conveyed to him these judgments, but OF
which there is no written evidence In
the meanwhile they had been affirmed by the
Court Appeals and the right to tax another bill Of
costs had accrued, and Quackenbush must have
known the fact if Wheaton did not How, them can
it be claimed that after notification of the collection
OF these judgments the written statement i'll the
account rendered in 1875 putting the amount of the
recovery at 81, 134 Al and making mention of the
taxable costs. that that alone constituted deceit
which practised upon him and by which he
tanned serious damage, when with the knowledge he
must have possessed, that ut least Quackenbush
possessed and which l am satisfied upon the evil
dence he did Observation-Disclosures that he testi-
fes to the contrary-he refrained from asking a
single question concerning it that is. according
" his testimony and when, as he con-
cedes, the account was in his possess
sion ten or twelve days before it was
finally adjusted Now Mr. Newcombe testified that
the account rendered in September. That is de-
MED. But 1t is admitted that the plaintiff had it in
his possession at least ten twelve days, and in the
meantime the amount of these judgments could have
been ascertained from the record. Moreover, Mr..
Quackenbush testified that Mr.. Wheaton had told him
that they amounted to $1,000 or $l,5OO Whatever
grievance the plaintiff may have in consequence of
defendants charges, if any, cannot be considered
here his action not brought for the correction
OF an alleged overcharge but ror deceit which he
claims practised upon him in the statement
OF the amount collected, and in that alone,
by which he was msled. to his damage, and
for which he seeks to treble damages. The
proof shows aside from the explanation which
the defendant has given concerning the amount col
lected in of the of 81 134 Al that there
foundation for the action as brought and this
view finds strong confederation i'll the conduct of the
plaintiff years after the alleged occurrence. This
disposition of the upon the facts renders 1t
necessary to consider the serious questions of law
which have been urged by the defence against any
recovery The defendant is entitled the direction
of u verdict in his favor"
Mr.. Newcombe moved for an extra allowance, and
the Judge said, Eyes, take the full amount the law
allows" Thus Mr. Newcombe has received full
vindication. AIessrs. Hart Il Hamburger and
Townsend Weed appeared for Mr.. Wheaton, and
ex-Judges Fullerton and Cardozo for Mr.. Newcombe.