23 Barb. 420 | N.Y. Sup. Ct. | 1856
The plaintiff and his partner, Mr. Martindale, being practicing attorneys and counsellors of this state, entered into a contract with the defendant, who had a cause of action against the New York Central Rail Road Company, for a personal injury sustained by him as a passenger, by reason of a collision on said rail road; by which agreement, the plaintiff and Martindale were to commence and prosecute an action in favor of the defendant against said rail road company, for such cause of action; for which services the defendant should pay or secure them $50 to begin with, and they to have the taxable costs, and twenty per cent of the amount recovered in said action. That is substantially the agreement alleged in the complaint, and proved on the trial.
How far the common law definition of champerty, as now found in elementary treatises, is taken from old statutes, which centuries since have been repealed or superseded by other statutes, it may be difficult to determine. However that may be, they, with all other existing provisions of law on the subject as applied to agreements between attorneys and counsel with their clients respecting compensation to the former, are swept away by the section of the code referred to. There has been no direct adjudication on this subject that I have met with since the
In the case before us, there is no complaint of fraud, unfairness or overreaching. In a proper case, there can be no doubt of the power or duty of the court to punish an attorney, or render summary justice to the client who has been made the victim of such dishonest practices. (Bary v. Whitney, 1 Code Rep. N. S. 101.) Upon the whole, we perceive no illegality in the agreement in question which the referees held was illegal and void; and the judgment should therefore be reversed and a new trial ordered, with costs to abide the event.
Ordered accordingly.
T. R. Strong, Welles and Smith, Justices.]