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Bayerl v. Smyth

Decided: January 22, 1937.

HERMAN H. BAYERL AND JOSEPHINE F. BAYERL, PLAINTIFFS-RESPONDENTS,
v.
SARAH D. SMYTH, DEFENDANT-APPELLANT



On appeal from the Supreme Court.

For the plaintiffs-respondents, Richard Doherty.

For the defendant-appellant, Allan Benny and Andrew J. Markey.

Wolfskeil

The opinion of the court was delivered by

WOLFSKEIL, J. Plaintiffs sued for alleged negligence of the defendant in the making and reporting upon a search against the title to property which they were acquiring through the medium of an exchange of real estate. The alleged negligence was the failure to report a judgment which was a lien against the property. There was judgment for the plaintiffs and defendant appeals.

The material facts in evidence were as follows: On February 5th, 1930, the plaintiffs entered into an agreement with Frank Convertini and Ethel Convertini to exchange real estate owned by them at West New York for real estate owned by the Convertinis at Riverside, New Jersey. The agreed appraisal of plaintiffs' property was $35,000, and the appraisal of the Convertini property was $29,000. The encumbrances against both were scheduled so that each parcel showed an equity of $12,000. The defendant, an attorney-at-law, was engaged by the plaintiffs to search the title.

On February 24th plaintiffs attended at the office of the defendant and the title was then closed. At that time the defendant reported that the only encumbrances against the Convertini property were the liens set out in the exchange agreement and also a judgment obtained against the Convertinis by George F. Losche amounting to $243.83 for which, seemingly, an allowance was later made by the parties. The agreement for the exchange of real estate was thereupon fully completed by the delivery of both deeds and the deeds were left with the defendant for recording.

On February 26th the defendant telephoned to the plaintiff Herman H. Bayerl that a report of search from the Supreme Court clerk had just been received and that it showed another judgment against Frank Convertini for $768.58. Plaintiffs then consulted counsel who advised them to demand and procure their deed from the defendant and have it recorded, which was done.

Among the agreed liens against the Convertini property was a past due mortgage held by Reverend John N. Grieff, for whom the defendant for many years had been solicitor. Seventeen days after the closing of title the plaintiffs were

served with subpoenas in a foreclosure suit brought by defendant as solicitor of this mortgagee, the outcome of which was that the plaintiffs "lost the property."

The jury returned a verdict for the plaintiffs and assessed the damages at $773.38, being the amount of the judgment which the defendant neglected to report at the closing of title, together with accrued interest.

Appellant assigns eleven grounds for reversal, none of which contains any averment of error except the last, which is that the court refused to direct a verdict for the defendant. ...


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