181 A.D. 228 | N.Y. App. Div. | 1917
In view of the settlement between defendant and the widow who is the sole beneficiary of the right of action, the good faith of which was not questioned, the learned trial judge was clearly right in holding that there could be no recovery beyond the amount necessary to protect plaintiff against loss for the funeral expenses she had paid and her liability to her attorney for his services in the action. As to the latter, both plaintiff and her attorney stood upon the written contract between them as fixing the amount of the attorney’s compensation.
We are of opinion that the $400 paid by defendant in settlement is the amount received upon the plaintiff’s claim within the intent and meaning of the contract with the attorney, and that the attorney’s right to compensation is, therefore, limited to not more than fifty per cent of $400, and the taxable costs.
Since the settlement was not attacked for fraud or as collusive, we think it was error to submit the question of the amount of damages' to the jury for the sole purpose of permitting a recovery of one-half the amount of such verdict to satisfy the attorney’s contract.
The judgment and order should be modified so as to reduce the amount of plaintiff’s recovery to $200, and interest from December 26, 1913, for the attorney’s compensation, together with the costs as taxed, and $141 for funeral expenses, and as so modified affirmed, without costs of this appeal to either party. The decree of the surrogate should be modified so as to fix the attorney’s fees and expenses at $200, and interest from December 26, 1913, in place of $1,620.50, and as modified affirmed, without costs of this appeal to either party.
All concurred, except Kruse, P. J., who dissented and voted for affirmance.
