Lynn v. McCann

Appeal from a judgment entered July 13, 1917, upon an order of the Appellate Division of the Supreme Court in the fourth judicial department, reversing a judgment in favor of plaintiff entered upon a decision of the court at a Trial Term without a jury and directing a dismissal of the complaint as to the defendant, respondent. The action was to recover for legal services alleged to have been rendered in an action of ejectment brought against the respondent’s co-defendants. During the pendency "of the action said co-defendants conveyed their interest in the property in suit to the respondent. The plaintiff successfully defended the action and seeks to recover for his services, against defendant, respondent, on the theory of an implied promise. The Appellate Division held that under the circumstances she could elect to join in defending the ejectment action or remain passive and stand, on her deed for indemnity, and where she chose the latter course she could nút be held liable for the expense of defending the action, i Joseph McSweeney for appellant.