45 N.Y.S. 113 | N.Y. App. Div. | 1897
The action out of which the present controversy arose was brought to recover a balance of $6,014, claimed to be due to the plaintiff from the defendant for material furnished, and labor and services performed upon- private residence premises in the-city of Hew York. The defendant denied liability and set up by way of counterclaim improper work, failure to furnish material, loss of rent, money loaned and other items, amounting in the aggregate to the sum of $20,510.18. The action was begun about April, 1893, and Augustus B. Prentice was retained to defend the action and served notice of appearance therein. He had, prior to this time, performed some service in endeavoring to negotiate a settlement of the matters in dispute. The cause being at issue, the same was-, upon December 28, 1893, referred to Levi A. Fuller, as referee, to hear, try and determine. The hearing before the referee began on the 23d day of February, 1893, and has continued down to the 8th day of February,
The amount of the balance which the defendant’s attorney now claims is due and owing to him for his services is the sum of $3,410. Prentice claims that when he was retained by the defendant it was upon the understanding that his fees should be paid as the case progressed ; that he expressly stated that he would take the case upon no other condition. The defendant claims that he has never promised-to pay the attorney any sum of money that he has not paid;that he feels quite certain that he has fully paid what his attorney’s services were worth. It is not at all necessary that we settle this disputed question upon this motion. Enough appears in the affidavits, however, to show that the defendant upon this question is, if he insists, entitled to have his liability established in the usual forum where actions are tried and claims are established. One proposition stands out. before us clear and distinct; it is that the attorney for the defendant refuses to proceed with the trial of this action, or to permit any one else to represent the defendant unless he be paid, either, in whole or in part, his claim for services. He, therefore, brings himself squarely within the doctrine laid down in Matter of H--- (93 N. Y. 381). By his refusal to proceed, in the language of the above case, “ he discharged himself, and, in such a case, it is clear that an attorney cannot leave his client in the middle of a matter because he does not supply him with money, or by reason of any
But in- all of these" cases the lien was upheld and continued upon the ground that the relation of attorney and client continued, and that the.business in which the attorney was engaged was finished Avhile the relation. continued. In the last case cited - the rule is recognized that, Avhen an- attorney accepts a retainer generally to conduct a legal proceeding, he enters into an entire contract to conduct the proceeding to a conclusion, and he cannot abandon his relation without justifiable cause. It is true that there is a somewhat anomalous condition respecting these contracts ; for, while it is the duty of the attorney to proceed to a termination of the matter in which he" has engaged himself, it is the right of the client to discharge arbitrarily, at any stage of "the proceeding with no greater liability than to compensate the attorney for services rendered up to that time. And for- this reason it is said that the rule which binds the attorney to an entire performance ought not to be very rigidly enforced. But the clear distinction is always made that the attorney, in order to maintain his lien, must show performance upon his part or such a condition as clearly justifies his withdrawal. (Sessions v. Palmeter, 75 Hun, 268.) 'When he discharges himself by * an absolute -refusal to proceed, no lien for seiwice attaches either .to judgment, proceeds or papers. In the language of Mr. Justice Van Brunt : “ It is clear that the defendant, in view of the attitude taken by his attorney, AAras entitled to a substitution, and there was
In the present case we think that nothing appears which justified the attorney in the abandonment of his client in the midst of the trial. . We have rehearsed the facts for the purpose of showing what we regard as the unjustifiable delay in the prosecution of this action and the enormous expense, comparatively, which has attended it. This class of actions, while complicated as to items, as a house is of parts, is not, beyond that fact, difficult or extraordinary. Such actions engage the attention of the courts at each term, and are disposed of -with but little delay when proper effort is made to .that end. This suit has now been before the referee for over, four years. The fees already paid amount to $6,600 more than plaintiff’s original claim. The item now demanded by the defendant’s attorney is $3,410, making the claims. paid and those demanded, of. which we now know, the sum of $10,010, and the end is not yet. For along time the fees . of referees . led the procession of fees, and frequently amounted to more than the sums paid to counsel. But established order - cannot always maintain itself. Stenographers looked with jealous eye upon this fatness of fees. . Modestly, but with determination, pertinacity and legislation to aid, they crept up, desire ever keeping pace with opportunity, until it has brought them at the top, with appetites whetted and keen scent for more. It is the usual thing now that stenographers’ fees are greater than referees’ fees.
The order appealed from should be reversed, with ten dollars costs and -disbursements, and the motion to substitute should be granted, with ten ^dollars costs.
All concurred.
Order reversed, with ten dollars costs and disbursements, and motion to substitute granted, with ten dollars costs.