102 N.Y. 395 | NY | 1886
It does not affect the validity of the contract between the attorney and his client, that measured by the old rules relating to champerty and maintenance, it would have fallen under their condemnation; for neither doctrine now prevails except so far as preserved by our statutes. (Sedgwick v. Stanton,
The facts of the case are not very fully developed, but appear to be that the defendant as devisee under a will was entitled *398
to certain real estate; his right dependent upon the validity of the will, and in some manner threatened by proceedings before the surrogate which put his interest in peril, and made a defense essential to its protection. In this emergency he sought the aid and professional service of the plaintiff and retained him as attorney. The latter neither sought the retainer, nor did any thing to induce it. So far as appears, it was not occasioned by any offer or solicitation of his, but originated in the free and unbribed choice of the client. The evidence does not show whether the latter had gained possession of the land devised or was out of possession, but he gave to the attorney a deed of the one undivided half part of the property, taking back his covenant to conduct the defense to its close, paying all costs and expenses of the litigation, and indemnifying the devisee against all such liability. The agreement appears to have been purely one for compensation. If the client had given to the attorney money instead of land, the contract would have differed in no respect except the contingent character of the compensation. The arrangement contemplated success in the litigation, in which event the land would pay the costs and expenses and the attorney's reward, and both would be discharged out of the property of the client placed in the hands of the attorney for that precise purpose. The contract in no respect induced the litigation. That was already begun and existed independently of the agreement, and originated in other causes. It did not tend to prolong the litigation. It made it to the interest of the attorney to close it as briefly and promptly as possible, and at as little cost and expense as prudence would permit. The plaintiff, therefore, stirred up no strife, induced no litigation, but merely agreed to take for his compensation so much of the value of the land conveyed to him as might remain out of that value after the costs and expenses had been paid. We do not think the statute condemns such an agreement. (3 R.S. [6th ed.] 449, §§ 59, 60; Code, §§ 73, 74.) The Code revision changed somewhat the language of the prohibition, but, nevertheless, must be deemed a substantial re-enactment of the earlier sections. *399
(Browning v. Marvin,
The judgment should be reversed and a new trial granted, costs to abide the event.
All concur.
Judgment reversed. *400