83 N.Y.S. 539 | N.Y. App. Div. | 1903
'The plaintiff' owned premises on the northwesterly side of Elm street and southwesterly side of Pearl street, and contracted to conyey the same to the Hew York Life Insurance .Company. There was- an action pending against the -plaintiff brought by David Boyd, individually and'as-administrator'of the estate of Samuel Boyd, involving 'the title to these premises in' which a notice .ofpendency had been filed. .As a.condition- of taking title the insurance, company insisted. upon a cancellation .of th& Us pendens, and this' was'consented to bythe attorney for the plaintiffs in'that actidn iipon condition that the sum of $62,000 of' the purchase price, be deposited to abide the event of the action. I't was deposited with the defendant-trust company on the 21st day of July, 1896. Henry Daily, Jr., was attorney for this plaintiff in that action. He died on file 25th day of October, 1900.' Oh the twenty-eighth day of January. thereafter the actidn was duly discontinued by stipulation of the attorneys, another attorney, haying beén substituted, for this plaintiff, and.by the stipulation, of discontinuance the trust company wás authorized to pay the fund, together with the''accumulated interest,
Upon the trial the executrix proved an agreement in writing between the plaintiff and her testator, executed and acknowledged before a notary public on the 13th.day of July, 1899. This, agreement expressly provided that the deceased'attorney should -have A lien upon this fund for his services in twelve specified actions •involving the title to real estate in which this .plaintiff was a party-plaintiff in some and a. party defendant in others.' The agreement expressly recited the compensation ■ that the attorney was to receive for his-services in each of these actions, nine of - which at that timé liad been disposed of favorably, to this plairitiff, three only rein aim ing' pending. One ' of those then pending' was a suit in. equity to quiet title to premises at the corner of James and Oak. streets, the title to which was claimed'by this plaintiff, ’who was also plaintiff in -that action.' ■ This action- was during the lifetime of the attorney tried and finally decided adversely to his client.' Another of the action's pending at that timé was an ejec'tmerit action brought against this .plaintiff to obtain possession of- the same premises; and the trial of that action had been enjoined in the equity suit pending its determination. The decision in the equity suit was decisive of tlie ejectment action, and nothing further could be done therein in ■favor of this plaintiff; ' The other pending action was the one relatiing to the premises sold to the'New York Life Insurance Company; ■in ■ which the notice of pendency had been filed and. canceled,' as stated. This plaintiff was a defendant: in that action. He claimed title -under a sheriff’s deed executed to him upon a certificate of sale of 'the' premises which had. been assigned to him. The .action.was
These contentions will be discussed in the order stated. First. The agreement expressly recites that it is but the evidence of an agreement, made betwéen the attorney and his client, concerning'the compensation to be received for services to be rendered in a large number of actions pending at the date of the original employment, and of agreements made from time to time thereafter as other litigations arose, and that it was reduced to writing at this time at the special instance and request of the client. The agreement covers twenty-eight pages of the printed record and, as has been stated, it was both signed and acknowledged by the plaintiff. At the time of making this agreement the plaintiff also executed and acknowledged an assignment of the fund in question to the extent of the lien created by the contract. The plaintiff appears to have been an intelligent man of considerable business experience and had been extensively involved in litigations since 1872, had changed attorneys twice during that time and had also become involved in litigation with each preceding attorney. He was also the owner of considerable valuable real estate and other property. A vast.amount of services appears to have been rendered to the plaintiff by the decei
" We are-of opinion -that the' value of. the services as agreed upon between the parties and-recited in this agreement was fair and reasonable and the nature of the contract is such- that We tljink the plaintiff fully understood its terms and provisions. ‘ The correspondence between the attorney aiid his client and a- receipt for moneys paid by the latter show that there Was an agreement, between them as to the compensation that- the áttornéy was to receive and that the payments aggregating • $5;'0'00 subsequently made • were made to apply on the compensation as provided for. in that agreements •There was also evidence of a declaration made by the plaintiff long prior to the'reduction, of this agreement to writing, indicating the existence of an agreement between them by which the attorney was to receive large compensation. Of; course the general rule is that as to contracts made- between the attorney and client subsequent to the employment which aré beneficial'to. the attorney, it is incumbent Upon the latter to show that the provisions are fair and reasonable and were fully known and understood-by the client, but this rule does not apply to agreements for compensation: made between an attorney and client prior to the establishment of that, relation, 'and according to the recitals in this contract, which we believé -were ■known and understood by the plaintiff; the principal agreement for
. :' Second. The alleged error in precluding, the plaintiff from testifying concerning his knowledge of this instrument or its.- contents consists in excluding, upon the objection, of the respondent,/--his answer to the following question : “. Do you know of. any li.en .giveu •by you to anybody upon.the; fund- on deposit .in the Hew York Life Insurance .&.-Trust Company in favor of anybody?’,’ The objection was that the. evidence was -.incompetent, irrelevant' and inadmissible under section" 829 ,of the Code. ■ The evidence was clearly incompetent; The question called for a conclusion and ;th.e evidence was properly excluded, even if the plain tiff Were a competent witness to testify to a- personal transaction with his deceased attorney, which he was not.
..-.Third. We are-.of opinion that the contract was. not entire'./. It will be borne in mind.that the writing is but the .evidence of the previous agreements, which were several as to each action. In the action which had been appealed to .the Court of Appeals, it is also -manifest that the agreement expressly provided for the compensar tion for the services rendered down to the time of the death of the attorney. As these services were rendered the'contract price became due and payable and, if it was not paid, the attorney would have been a.t liberty to have refused further performance, and payment could have been, collected. The mére fact that the attorney was prevented by death from rendering.the final services does not preclude a recovery for.-the services previously/rendered and for .which compensation had become due and payable at the rate stipulated.- :
,- Fourth. Mr. Hand, who was an attorney practicing for ’himself, had offices in connection with, the decedent, and was accustomed- to /assist decedent with the latter’s practice, and -in some of the: litigations in question, and on .occasions when the decedent would be
Fifth. The counsel have stipulated that the record shows an error in crediting the payments, and that the judgment should be reduced by the sum of $582.80. In addition to- the three actions already specified as pending at the time of-the death of the- attorney, there were six other actions pending, agreed compensation in which was recited in the agreement to which reference has been made. One of these was an action against this plaintiff based upon a judgment. This action was ■ pending at the time-of the'decedent’s original employment. An order of substitution of attorneys for the defendant was entered, and at this time- the action had been tried and decided adversely to this plaintiff, and liis former attorney had moved for a new trial on newly-discovered evidence without a. case and the motion had been granted. The decedent defended the ■order upon appeal, and upon it being reversed,.made and settled a case, and then moved for a new trial, which was granted; and the case was placed upon the calendar and marked reserved generally, but had not been tried at the time of the attorney’s death. The compensation agreed to be paid ■ for all services in this action was. the sum of $569.60, and this has been allowed in full by the trial court. The action was discontinued, after the attorney’s, death as part of the arrangement under which the other actions already referred tó weió'MiScótitiiíued. The appellant'-'ctiiifends,- however, that inasmuch as the action was pending and nothing, had been done by the decedent to control its final determination, full payment of the contract price should not have been awarded, and with this con
/Sixth. The court, in granting an extra allowance, exercised its discretion to the full extent allowed by the statutes ; but, in view of the numerous involved questions presented, which required the analysis of an enormous amount of evidence, we cannot say that the discretion has been abused.
We have examined the other questions which have been drawn to our attention, but none of them require special consideration.
It follows, therefore, that the judgment should be reversed and a new trial granted, with costs to appellant to abide the event, unless the respondent shall stipulate to reduce the recovery by the amount of $5,271.66 and interest thereon from the 4th day of March, 1901-, to the date of the entry of the judgment, interest having been allowed respondent oh all amounts for that period, in which event the judgment is modified accordingly and affirmed, without, costs. :.
- Van Brunt, P. J., Patterson, Ingraham and Hatch, JJ., concurred.
Judgment reversed and new trial .granted, unless respondent stipulates as stated in opinion, in which event judgment modified and as modified .affirmed, without, costs.