139 N.Y.S. 428 | N.Y. App. Div. | 1913
This action is brought for an accounting of the sums received by defendant Curtis by way of counsel fees and compensation in a series of suits brought against the city of New York in behalf of the “ Matrons ” of certain penal and reformatory institutions in said city. A written agreement was entered into on September 30,1908, the material parts of which are. as follows:
“Whereas the said Curtis now has in his office for prosecution certain claims by certain parties known as £ Matrons' in certain penal and reformatory institutions of the City of New York, which claims are for increased compensation, gradation and classification, and
£ £ Whereas it is desired by both of the parties hereto that they shall together undertake the prosecution of said claims, and
“Whereas the said claims are upon a contingent basis, therefore, it is mutually agreed that the said Curtis will act as attorney of record in all of the proceedings, and the said Hill will act as counsel whenever required so-to do, which may be taken to recover the said claims, and that each party hereto will give as much of his time to the prosecution of said claims, as may he necessary and it is further agreed that each party hereto will pay one-half of the expenses that may be incurred in the prosecution of the said claims, and that the profit, fee, compensation or other emolument which shall or may be received from the prosecution of said claims, shall be equally divided by and between the said parties hereto,
“If either party shall die before the termination of the litigation, if any, or the negotiations, and before the receipt of the fee, profit or emolument, the surviving party will undertake to carry on the prosecution or negotiations to its conclusions, and the heirs of the one who may die shall he entitled to the same compensation as the deceased would be entitled to if alive.”
While participation in profits is an important factor in determining whether an agreement constitutes the parties thereto joint venturers, this of itself does not afford an infallible test. Bather where a share in profits is contracted to be paid, the question seems- to be,, is it as a measure of compensation to employees for services rendered in the business, or for the use of moneys loaned in aid of the enterprise, or does the agreement extend beyond this and provide for a proprietary interest in the subject-matter out of which the profits arise, and an ownership in the profits themselves as compensation for money advanced or time and services bestowed as a principal in the prosecution of the enterprise ? (Hackett v. Stanley, 115 N. Y. 625; Boice v. Jones, 106 App. Div. 547; Marston v. Gould, 69 N. Y. 220; Weldon v. Brown, 84 App. Div. 482; S. C., 89 id. 586; Moscowitz v. Sassulsky, 141 id. 763.) The contract contains a recital to the effect that it is the desire of both parties “ that they shall together -undertake the prosecution of said claims.” A mere recital in an instrument, however, particularly if it is an incorrect recital, is not conclusive upon the rights of the parties. It also appears from said instrument and from the evidence in the case that the retainers in the various claims to be prosecuted ran to the defendant personally, so that in the first instance he may be said to have been the
Jenks, P. J., Thomas .and Carr, JJ., concurred; Hirschberg, J., dissented.
Judgment reversed and a new trial granted, costs to abide the final award of costs.