70 A.D.2d 429 | N.Y. App. Div. | 1979
OPINION OF THE COURT
Defendant is a patent law firm and plaintiff is a manufacturer and seller of agricultural machines and food processing equipment. For the last 18 years defendant has represented plaintiff on patent matters in the United States and various foreign countries. During that time it was the practice of the parties to maintain a running account for services rendered to the client and as the services were performed, defendant submitted periodic statements to plaintiff who then made payments on account. In 1977 defendant became concerned over the amount of plaintiff’s indebtedness and when plaintiff was unwilling to arrange for payment in full, it withdrew as plaintiff’s counsel. Thereafter plaintiff initiated a special proceeding against defendant to obtain its files and records. Special Term ordered the turnover on condition that plaintiff post a $100,000 bond to secure defendant’s fees. It converted the proceeding to the present action at law to permit defendant to interpose counterclaims for professional services. Although an appeal from that turnover order was perfected, the files and records have been delivered to plaintiff and it is not now challenged. This appeal concerns only the dispute over the unpaid balance allegedly due defendant from plaintiff for professional services and disbursements.
After the proceeding was converted to an action at law defendant answered and pleaded counterclaims for the sums due. Thereafter, it moved for summary judgment on the counterclaims, alleging an account stated, and it moved to strike plaintiff’s reply.
An account stated is an agreement between the parties to an account based upon prior transactions between them with respect to the correctness of the separate items composing the account and the balance due, if any, in favor of one party or the other (see 1 NY Jur, Accounts and Accounting, §§ 5-7). In the case of an existing indebtedness, the agreement may be implied as well as express (cf. Gurney, Becker & Bourne v Benderson Dev. Co., 47 NY2d 995, revg 62 AD2d 1165). An agreement may be implied if a party receiving a statement of account keeps it without objecting to it within a reasonable time because the party receiving the account is bound to examine the statement and object to it, if objection there be. Silence is deemed acquiescence and warrants enforcement of the implied agreement to pay (Rodkinson v Haecker, 248 NY 480; Steingart Assoc. v Sandler, 28 AD2d 801). An agreement may also be implied if the debtor makes partial payment. The partial payment is considered acknowledgment of the correctness of the account (Parker Chapin Flattau & Klimpl v Daelen Corp., 59 AD2d 375; Rik Shaw Assoc. v Bronzini Shops, 22 AD2d 769; see, also, Milstein v Montefiore Club of Buffalo, 47 AD2d 805, 806). An attorney may contract with his client on the cost of his past or future services, of course, and an account stated may exist between them (Rodkinson v Haecker, supra, pp 485, 489; Parker Chapin Flattau & Klimpl v Daelen Corp., supra). In the absence of fraud, mistake or other equitable considerations making it improper to recognize the agreement, it is conclusive.
In this case the unrebutted documentary proof annexed to defendant’s moving papers convincingly establishes its claim. Over the years, it was defendant’s consistent practice to perform professional services for plaintiff, many of them routine and recurring, and to submit periodic statements for these services. A balance was maintained with debits entered as additional services were performed and credits entered as partial payments were received from plaintiff. It does not appear that the account was paid in full at any time after 1973, however, and by late 1977 the balance due for professional services and disbursements totaled $106,422.40. On September 15 of that year counsel wrote plaintiff advising it
On December 30, 1977 defendant sent plaintiff’s president a certified letter advising that the balance of the account was then $107,808.79 and complaining once more of plaintiff’s failure to pay the bill or arrange for payment. Counsel stated that unless a meeting was scheduled by January 10, 1978, defendant intended to terminate its representation of plaintiff and notify the several courts in which litigation was pending. Additional copies of the letter were forwarded to the home of plaintiff’s president and to plaintiff’s comptroller to be hand delivered by the comptroller to the president. On January 24, 1978 $15,000 was paid "on account” and apparently a meeting between the parties was arranged. The president requested and obtained several postponements, however, and on February 3, 1978 defendant wrote him once again insisting that oral promises of payment were not acceptable, restating the balance of the account and demanding immediate payment with interest. Additional letters were sent to other officers of the corporation with copies of past correspondence and restating the balance of $92,808.79. There was subsequent correspondence between the parties but it does not appear that the amount of defendant’s bill was ever questioned. Finally, when no payment was forthcoming, defendant notified plaintiff it was withdrawing as plaintiff’s counsel and it notified the various courts that it no longer represented plaintiff.
Defendant proved that it performed extensive professional
The order should be modified by reversing so much of it as denied defendant’s motion for summary judgment, the motion should be granted, and the order should be affirmed in all other respects.
Dillon, P. J., Cardamone and Wither, JJ., concur.
Appeal No. 1 [attorney’s lien] Order unanimously affirmed.
Appeal No. 2 [attorney’s fees] Order unanimously modified, and, as modified, affirmed, with costs to defendant.
Plaintiffs original reply was served a day late and, although defendant’s answer and counterclaims were verified, the reply was not. Defendant returned the reply pursuant to CPLR 3022 and plaintiff then submitted the same reply, late but verified.