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Tsibikas v. Morrof

Decided: February 13, 1951.


Jacobs, Eastwood and Bigelow.

Per Curiam

[12 NJSuper Page 104] The defendant Maximilian Morrof, an attorney-at-law of the State of New Jersey, appeals from a judgment entered in the Hudson County Court in favor of his former client, the plaintiff Astor Tsibikas. An earlier phase

of the proceeding is reported in Tsibikas v. Morrof , 5 N.J. Super. 306 (App. Div. 1949).

In 1945 the plaintiff discussed with his friend and attorney, Mr. Paladeau, the prospects of having his mother-in-law and brother-in-law emigrate from Greece to the United States. Mr. Paladeau recommended that he consult the defendant who specialized in immigration matters. The defendant advised that arrangements could readily be made for the early entry of the mother-in-law but he did not know what could be done for the brother-in-law. Thereupon the defendant was retained to arrange for the mother-in-law's entry, received a fee of $250 and performed services.

In December, 1946, the brother-in-law, referred to as El, reached Norfolk, Virginia, as a stowaway, accompanied by Michael, another stowaway. Thereupon the plaintiff conferred with the defendant who told him that while he could not guarantee anything he thought he might be of help and his fee would be $1,500. The plaintiff paid this fee, apparently believing that it represented the full charge for handling El's matter although the defendant testified that it was to cover services before the appropriate administrative officials, including the Board of Immigration Appeals. The defendant then went to Norfolk and arranged for El's release on bail and his later surrender at Ellis Island pending administrative determination. In January, 1947, the plaintiff learned that Michael was about to be returned to Greece and, after conferring with the defendant, paid him a fee of $1,500 to handle Michael's case and thereafter Michael was removed from the S.S. Marine Carp which was then about to sail.

The plaintiff testified that early in February, 1947, the defendant called him and told him "everything was lost about Mike and El," the only way was to send them to Cuba, and the cost would be $1,000 for obtaining their visas. He further testified that on the following day the defendant told him that the $1,000 would be for temporary visas which would only assure their stay in Cuba for three months, but by paying $3,000 permanent visas could be obtained. Thereafter there was a conference at Mr. Paladeau's office which was attended

by the plaintiff, the defendant and Mr. Paladeau. The plaintiff testified, in effect, that after considerable discussion he agreed to pay $3,000 in escrow upon the understanding that the defendant would provide permanent visas before El and Michael left for Cuba, while in Cuba they would be provided with jobs for their support and would be "no burden" to the plaintiff, and they would be back in the United States within nine months. The $3,000 was paid to the defendant in cash and, although his testimony was confusing, he seems to have substantially acknowledged that the money was to be held by him in escrow pending his obtainment of permanent visas.

On February 10, 1947, the defendant was notified that the order of exclusion in El's case had been affirmed by the Board of Immigration Appeals and El and Michael were actually on the S.S. Saturnia which was sailing that afternoon. However, as the result of the defendant's efforts, the men were removed from the ship and awaited transportation to Cuba. On February 27, 1947, they left for Cuba by plane and at that time the defendant advised the plaintiff that although he obtained temporary visas he had been unable to obtain permanent visas. The plaintiff testified that the defendant told him he had nothing to worry about and the permanent visas would arrive in about nine days. In March, 1947, the plaintiff was called to the defendant's office, was told that El and Michael were in trouble in Cuba, it was necessary that the defendant go to Cuba, and his fee would be $2,500. The plaintiff testified that he refused to pay the defendant any additional sum or authorize him to use any part of the escrow fund of $3,000; the defendant testified to the contrary. The defendant used the fund, went to Cuba and upon his return, according to plaintiff's testimony, advised the plaintiff that he had "straightened everything out." El and Michael testified that they had never been in trouble while in Cuba, had never received any permanent visas and, as a result, had not been permitted to work there, thus necessitating expenditures by the plaintiff for their support. El left Cuba on December 27, 1947, and was permitted to enter the United States as the fiance of a veteran of World War II; on the basis of his subsequent

marriage he has obtained permanent residence status in the United States. Michael re-entered the United States as a seaman but never obtained legal status and is free on bail awaiting deportation.

In June, 1947, the plaintiff demanded return of the $3,000 fund. After the demand was rejected the plaintiff consulted his present attorneys and in due course they filed complaint against the defendant in the Hudson County Court. The first and second counts of the complaint sought recovery of the $3,000 plus interest, the first count alleging that the defendant had failed to perform his agreement with the plaintiff and the second count alleging that the defendant had obtained the $3,000 by fraudulent representations. The third count of the complaint sought, as consequential damages, recovery of the sum actually paid by the plaintiff for the support of El and Michael while in Cuba. The defendant filed an answer denying the plaintiff's claim and a counterclaim seeking recovery of additional fees for legal services rendered to the plaintiff. A lengthy trial was held and extensive testimony by the parties and their witnesses was taken. At the close of the case the defendant's motion for judgment was denied and the court permitted the plaintiff to amend his pleading to conform to the evidence.

In its charge the court set forth the two separate grounds, namely, breach of contract and fraud, upon which the plaintiff sought to recover the sum of $3,000 plus $1,950 expended to support El and Michael in Cuba. On the first ground the court submitted to the jury determination of the factual issues as to the terms of the agreement between the parties, whether it was breached, and whether the consequential damages of $1,950 were such as might reasonably be supposed to have been within the contemplation of the parties when the agreement was made. On the second ground, the court submitted the factual issues to the jury after expressing its understanding of the plaintiff's claim that the defendant made fraudulent ...

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