Auerbach v. Curie, 111 N.Y.S. 327

111 N.Y.S. 327 | N.Y. App. Div. | 1908

Scott, J.:

The defendant appeals from a judgment in favor of the plaintiff entered upon a verdict. The plaintiff is a custom-house broker and the defendant is a lawyer. Some of plaintiff’s clients had a claim against the government for a return of duties, and an agreement was made whereby defendant undertook to obtain a refund in consideration of receiving a percentage of the amount recovered. The plaintiff alleges that he induced his clients to place their claims in defendant’s hands, and that in consideration thereof defendant agreed to pay him a proportion of his fee. This fee amounted to $44,031.69, and plaintiff’s allegation is that under his agreement with defendant he was entitled to receive from the latter one-half less a percentage to be retained to cover expenses. The defendant did pay plaintiff $10,000 and with his consent paid $1,000 to another broker named Schmidt. The present claim for which a judgment has been recovered is for the balance of the sum which it is alleged that defendant agreed to pay.

Upon a former appeal a judgment in favor of plaintiff was reversed, because it did not appear that plaintiff’s clients had been apprised of the fact that plaintiff was to receive a part of the fee which they had agreed to pay defendant. (119 App. Div. 175.) This omission has now been supplied. Another obstacle to plaintiff’s recovery now presents itself. In the coui’se of tire former opinion it was said : “ The plaintiff also by his own testimony came very near, if not completely, proving a settlement and accord and satisfaction of his claim when the $11,000 was paid over to him. Inasmuch as we have concluded that there must be a new trial, however, it is unnecessary to discuss this question.” The defendant since the last trial has amended his answer, and the question suggested but not discussed on the former appeal demands our consideration.

The plaintiff testified that he was introduced to defendant by one Schmidt, and retained defendant in behalf of his clients to prosecute their claims for a refund of duties; that it was agreed that defendant’s fee should be one-half of whatever was recovered and that out of this fee defendant would pay to plaintiff one-half of the fee, less one-eighth thereof for expenses. After the duties had been collected and defendant had collected his fee plaintiff called upon him to collect his proportion. After it had been agreed that Mr. Schmidt should receive $1,000 for having introduced the parties defendant handed plaintiff a check for $10,000. What took place then is thus stated by plaintiff. “ Before I received the check Mr. Ourie said that all he could allow me was one-eighth, and I told him at that time that I understood from him that I was to get three-sixteenths from the amount that lie recovered. Then he said, ‘ Well there have been extra expenses in trying this case.’ He said he had engaged the services of Choate, the lawyer, and it had to be taken to the Supreme Court, and that was all he would give me. I could either take that or leave it, just as I saw fit. Then Mr. Schmidt and I, we consulted about it. I asked him what he thought was the best thing to do and Mr. Schmidt said, ‘Well it is a large amount, I’d take it.’ So I told Curie I’d take the ten thousand and some odd dollars. His very words were that I could take that or I would get nothing.” Upon receipt of the money, which was on January 5, 1900, plaintiff gave defendant a receipt for the sum paid “in full for fees on refunds a/c S. Auerbach & Co.” This action was commenced in 1905. The testimony of Schmidt, who was a witness for the plaintiff, corresponded in the main with that above quoted. This evidence plainly made out the defense of accord and satisfaction. There was a dispute as to the amount plaintiff was entitled to receive; a sum less than he claimed was offered him in full settlement, with the alternative of receiving nothing; upon that understanding he accepted the amount tendered and gave a receipt in full. He could only accept the sum as it was offered which was that it was to be in satisfaction of his demand. He could not accept the payment and reject the conditions upon which it was made. (Nassoiy v. Tomlinson, 148 N. Y. 826.) Upon the plaintiff’s own testimony the defendant should have had judgment.

It follows that the judgment and order appealed from must be reversed, and a new trial granted, with costs to appellant to abide the event.

Ingraham, Laughlin, Clarke and Houghton, JJ., concurred.

Judgment and order reversed, new trial ordered, costs to appellant to abide event.