22 N.Y.2d 210 | NY | 1968
Plaintiffs are attorneys seeking to recover fees for services rendered pursuant to an alleged retainer agreement, which in fact was a typewritten letter from plaintiff Bass to Cedric Janien, president of defendant Bar Steel. Their complaint alleges that they were retained to both prosecute certain claims for Bar Steel against the Merritt-Chapman & Scott Corp., and to defend against counterclaims ultimately totaling $5,000,000 which would be introduced. This letter recited in part that where “ a claim is settled at qny time after trial has commenced or a judgment is procured on that claim, 20% of such amount as is recovered by such settlement or by such judgment of that claim, shall be paid as and for a fee.” Beneath Bass ’ signature, Janien inserted that “ There will be only a 2% charge on the retainage — if it is involved ’ ’. Subsequent events disclose that the defendant intended by this to limit plaintiffs’ recovery to 2% where a settlement constituted the satisfaction of an undisputed claim.
At the outset, it should be noted that the court at Special Term determined that plaintiffs, by their actions, agreed to be bound by the retainer agreement as modified. That court then accepted defendant’s contention that the fee was to be based on a percentage of the settlement, rather than on a percentage of the judgment. As indicated above, the retainer provided that where “ a claim is settled at any time after trial has commenced or a judgment is procured on that claim, 20% of such amount as is recovered by such settlement or by such judgment of that claim, shall be paid as and for a fee.” Rephrasing this clause, it provides that, if the claim is settled at any time after trial has commenced, 20% of this settlement shall be paid as and for a fee; however, if the claim is settled after a judgment is procured, the fee shall be 20% of the judgment. If the retainer
Plaintiffs were retained because of their expertise as trial attorneys. Furthermore, the retainer specifically stated that the agreement did not include appellate representation. The entire contract sustains plaintiffs’ contention that their fee was to be a percentage of the initial judgment. While a jury might conclude that the agreement failed to adequately express the terms of the retainer to Bar Steel, it is apparent that this is at least a “ material and triable issue ” within the meaning of CPLR 3212 (subd. [b]). As the entire decision of the court below was premised on its conclusion that the contract was ambiguous — mandating that plaintiffs ’ compensation be limited by the amount of the settlement — the order appealed from should be reversed in its entirety.
Additional triable issues of fact arose from the defendant’s insertion to the retainer of a clause which attempted to limit plaintiffs’ fee to 2% where the sum recovered represented the payment of an uncontested amount. Defendant has introduced a stipulation from Merritt-Chapman which, while executed in 1965, nevertheléss declares that there was never any dispute over $307,050.51, although litigation was necessary to collect this amount. Plaintiffs attack the stipulation, alleging that it was executed by Merritt in consideration for the settlement agreement. Also, they assert that it does not provide a proper method for determining what sums, if any, were in fact undisputed at the time the retainer agreement was executed in 1961. Finally, these attorneys contend that this provision was accepted by them only to the extent that the “ retainage ” was separate and apart from any litigation. In light of these pleadings, it is
For all these reasons, the order appealed from should be reversed, with costs, and the matter remitted to Special Term so that a trial may be held on the issues of fact raised herein.
Chief Judge Fuld and Judges Scileppi, Bergan, Keating, Breitel and Jasen concur.
Order reversed, with costs, and matter remitted to Special Term for further proceedings in accordance with the opinion herein.