239 A.D. 213 | N.Y. App. Div. | 1933
The action is by an attorney against another attorney, Cahn, and the executors of one Miriam Isaacs, deceased.
On August 8, 1925, Miriam Isaacs entered into a written contract with one Dr. Schmuck for the purchase of certain real property in the village of Lawrence, Nassau county, and paid $20,000 on account of the purchase price. In that transaction she was represented by the defendant Cahn. Subsequently she concluded that the purchase was an unfavorable one and, desiring to recede from it, employed the plaintiff for that purpose. Negotiations were almost concluded between the plaintiff, acting for Miss Isaacs, and Dr. Schmuck for the cancellation of the contract by relinquishing to Dr. Schmuck the deposit of $20,000 when a search of the title, caused to be made by Cahn, revealed the existence of a restrictive covenant affecting the premises and not referred to in the contract of sale. This, it was believed, would justify the rejection of title which was set for closing on December 17, 1925. It was recognized that, if title was rejected, litigation would be necessary to procure the return of the deposit, and Miss Isaacs desired, for reasons which are in dispute, that in that litigation the plaintiff should be associated with Cahn. Thereupon at her request Cahn wrote the plaintiff as follows:
“ Joseph Fihed, Esq.,
“ December 14th- 1925.
“ 15 William Street,
“New York City.
“ Dear Joe: Miss Isaacs informed me yesterday that she had arranged with you subject to my approval that you are to receive 40% (forty percent) of my fee for services rendered and to be rendered by you in association with me in the efforts to be made to obtain the return to Miss Isaacs of the deposit made by her with Dr. Schmuck on her contract.
“ My arrangement with Miss Isaacs is that I am to receive twenty-five (25%) of the said $20,000 or so much thereof as is recovered by her from Dr. Schmuck, whether as a result of litigation or settlement or otherwise. The arrangements made by Miss Isaacs and you are satisfactory to me.
“ Will you please acknowledge receipt of this letter confirming these arrangements by return mail.
“ Very truly yours,
“ MANNIE CAHN.”
The trial court dismissed the complaint on the merits as against the defendant executors and dismissed it as against the defendant Cahn without prejudice to an action by him for the reasonable value of the services rendered by him, holding that the plaintiff had not established performance of the contract. We think the complaint was properly dismissed as against the executors for the reason that the letter of December fourteenth, read in the light of the other evidence, sustains the finding of the trial court that the agreement contemplated that the full compensation should be paid by Miss Isaacs to Cahn and by Cahn divided with the plaintiff in accordance with their contract of December 14, 1925.
We do not agree, however, that the plaintiff failed to establish performance of his contract with Cahn. Differences of opinion, resulting in considerable acrimony, developed between the plaintiff and Cahn as soon as the action against Dr. Schmuck was begun. The plaintiff criticized various allegations of the complaint which Cahn had prepared, insisting that it tendered some issues that were not material and that one of the allegations was not true. Although he did not oppose the making of the motion for summary judgment, he expressed apprehension that it might not ultimately, succeed. It seems to be suggested that these facts in some way justified Cahn in refusing to recognize the plaintiff’s interest in the proceeds of the litigation. That, of course, would not be so. The plaintiff did not forfeit his right to compensation by expressing an opinion, however inconsistent with the opinion of bis associate, on questions arising in the course of litigation. That was one of the purposes for which he was retained.
The judgment dismissing the complaint on the merits as against the defendant executors should be affirmed, with costs to said respondents. The judgment dismissing the complaint against the defendant Cahn should be reversed, with costs to appellant against said respondent, and judgment directed in favor of the plaintiff
Finch, P. J., Merrell, Townley and Glennon, JJ., concur.
Judgment dismissing the complaint on the merits as against the defendant executors affirmed, with costs to said respondents. The judgment dismissing the complaint against the defendant Cahn reversed, with costs to the appellant against said respondent, and judgment directed in favor of the plaintiff against the defendant Cahn adjudging that said defendant received and held the proceeds of the judgment impressed with a trust in favor of plaintiff to the extent of $2,000 and that plaintiff recover of said defendant the sum of $2,000, with interest from May 19, 1928, with costs. Settle order on notice reversing findings inconsistent with this determination, and containing such new findings of fact proved upon the trial as are necessary to sustain the judgment hereby awarded.