Herman v. Metropolitan St. Ry. Co.

121 F. 184 | U.S. Circuit Court for the District of Southern New York | 1903

LACOMBE, Circuit Judge.

This cause was tried after plaintiff had settled it with defendant, receiving a sum satisfactory to himself and executing a general release, which was set up in a supplemental answer. The settlement and release was without notice to plaintiff’s attorney, who had served notice of lien for his compensation. The jury found, in answ'er to specific questions, that defendant was negligent, that plaintiff was free from negligence, and that the amount of damage sustained by the plaintiff was $500. Testimony has since been taken to show for what amount the lien of plaintiff’s attorney should be sustained. He undertook to prove that he had a contract with plaintiff for 50 per cent, of any recovery, the plaintiff to pay all disbursements. The only evidence to support this proposition is his om testimony, which the plaintiff contradicts. The court is not satisfied that such a contract was made, but, if it were, it was so utterly unconscionable as to be void. Matter of Fitzsimons (Sup.) 79 N. Y. Supp. 194. The action was to recover damages, for injuries resulting from an ordinary street accident, a collision between a car and a truck. To constrain or persuade a client into agreeing to give half the recovery, and to pay all the disbursements besides for preparing and trying such a case, is an abuse of confidence, which, in the language of the case cited, “it would not be in the interest of public policy or professional ethics” to approve.

The services actually rendered seem to be fairly worth about $150. Inasmuch as plaintiff has released his claim, no verdict can be rendered giving him any part of the damages found; he has already been paid them. Verdict, however, will be directed for $150, to which and to the judgment thereon the lien of plaintiff’s attorney will attach. Inasmuch as the recovery is less than $500, the judgment will be without costs.