NUMBER 249 1926

Question. In an action to recover damages for death by negligence a judgment was directed in favor of the defendant and affirmed by the Appellate Division. The plaintiff administratrix is the widow of the decedent and was left entirely destitute and with several small children.

If counsel for the plaintiff deems that a question of law exists which ought to be decided in favor of the plaintiff and the plaintiff is unable to furnish the necessary bond for costs in the Court of Appeals, is counsel justified in personally indemnifying a surety company and procuring the bond and prosecuting the appeal?

Answer. The Committee expresses no opinion upon the legality of the indemnity in view of Penal Law, Section 274 and Rule 27 of the Rules of Civil Practice.


In the opinion of the Committee the charity should not be induced by, or mingled with, the selfish interests of the lawyer. If he relinquishes his compensation and makes both the indemnification and the professional service the subject of the charity, it sees no impropriety in the suggested course (apart from the possible legal effect of the prohibitions of the statute and rule cited); otherwise the Committee considers that the proposition is to be disapproved because, notwithstanding the interests of the plaintiff, an inducing cause may be the purpose of the lawyer to prosecute the appeal partially for his own benefit.