176 Misc. 543 | N.Y. Sur. Ct. | 1941
Deceased and his brother-in-law Peters, an objectant in this accounting proceeding, made an agreement in June, 1930, providing for purchase by deceased through the medium of Peters of notes and stock in a realty corporation. This plan was consummated. The purchase price for the property was payable on May 1, 1934, with the obligation resting on Peters to make good on that date. Deceased died in January, 1934. When the law day arrived the representatives of deceased decided to resist
The accountants oppose the objectant’s claim on the ground that the indemnity agreement has no application to a claim for counsel fees. The court holds this defense to be without merit. Whatever might be said where an indemnitee recklessly incurs unnecessary legal expense in purporting to protect himself against liability while all the time the indemnitor is independently affording him ample protection, in the present case recourse to his own counsel was required of the indemnitee by the representatives of the deceased indemnitor. The objectant acted reasonably in engaging counsel and the demand of the latter for compensation is evidently one of the direct consequences of the execution of the agreement whereby the indemnitee became the nominal vendee of the notes and stock, the nominal defendant in a hotly contested litigation and the nominal judgment debtor over a series of years. The rule is settled that an indemnity agreement such as the agreement here made extends to payment of reasonable counsel fees reasonably incurred. (City Trust, S. D. & S. Co. v. Waldhauer, 47 Misc. 7, 13; Cassidy v. Taylor Brewing & Malting Co., 79 App. Div. 242, 244; Olmstead v. Rawson, 188 N. Y. 517,522. Cf. Hilliker v. Rueger, 228 id. 11, 16.)
The cases, however, recognize two basic types of indemnity agreement both of which happen to be illustrated by objectant's Exhibit 1. An indemnitor in the first place may promise to do a particular thing such as pay a debt for which the indemnitee is liable. Exhibit 1 contains such a promise. Or the indemnitor may promise to make good the damage sustained which flows from
The accounting parties contend for total exoneration from liability on the ground that an interchange of letters (accountants’ Exhibits 1, 2 and 3) occurring in 1936 constituted mutual general releases among the parties. These letters look to the preparation of general releases and nothing more. They form no agreement in prxsenti. Beyond this, upon examining them it became apparent that no consideration whatever moved to objectant in connection with this correspondence. This defense must fail, therefore.
Recurring now to the question of the extent of the indemnitor’s liability to Peters the court has taken proof respecting the services performed by the indemnitor’s lawyer. These services concededly were not so much concerned with defending Peters in the vendor’s action as they were in fending off threats by the judgment creditor against Peters as judgment debtor. From the standpoint of the indemnitee the services of his lawyer were entirely successful and the latter is entitled to fair compensation, payment of which must be made by the estate standing in the shoes of the indemnitor. The court fixes the reasonable value of the services of Mr. Jones to Mr. Peters at $1,500. To this extent objection 2 to the account is sustained. Objection 1 seems to have been abandoned and hence to require no formal ruling.
Since the accounting proceeding is not ready for decree at this time the objectant Peters if he chooses to do so may submit on notice an interim decree embracing the terms of this decision.