178 A.D. 165 | N.Y. App. Div. | 1917
The referee’s report was in proper form. It was in effect a nonsuit which would not call for special findings of fact. Furthermore, under section 2541 of the Code of Civil Procedure, the decision of the surrogate or his referee need not contain separate findings of fact.
Claimants’ testimony to prove a retainer from deceased starts at Boston, where Mr. Tyler, of the law firm of Tyler & Young, was visited by Mr. Francis E. Baker, an attorney, who purported to represent the complainants in an intended injunction suit against the Knollwood Cemetery Corporation. Mr. Tyler testified that Mr. Baker called, bringing an introduction from a Boston client, and that Baker said “ he was there in the interests of Carpenter and others. * * * And that he wished me to represent them as complainants in an action they knew could be brought which would stay the present reorganization of • Knollwood Cemetery.” Mr. Baker thereafter verified the complaint as one of complainants’ solicitors, and not as agent of the deceased. Messrs. Barney & Lee, the Providence attorneys, who represented Mr. Cammeron, a stockholder, and other interests in the Knollwood Cemetery, admit that they were brought into the litigation by Messrs. Tyler & Young, to whom Messrs. Barney & Lee rendered their bill, and who paid their disbursements. Indeed, in a subsequent interview, Mr. Lee informed the deceased that he had been employed by Tyler & Young, and was proceeding under their direction. Although Messrs. Tyler & Young made efforts to collect their disbursements, as by their direction a bill for about $3,500 disbursements was sent to the complainant Gardner Wetherbee, it did not appear that they had ever rendered any bill to the deceased during his lifetime, although he survived the termination of this injunction suit about eighteen months. In October, 1912, when there was talk of a new suit, Mr. Carpenter, the deceased, said he had seen Mr. Tyler, and had told him of the arrangement made with Mr. Baker, and that he, Carpenter, did not owe Tyler & Young anything for services rendered.
In these proceedings against Mr. Carpenter’s estate, a retainer from him must be proved. As the claimants are proceeding against his estate, without exhausting their remedy
These circumstances, especially the demand and later the attachment, being confined to a recovery of disbursements only, point to employment of Messrs. Tyler & Young on the basis of some contingency. After Mr. Tyler testified that he had no written agreement with Mr. Baker, he was asked: “ Q. Was there any agreement relative to a contingent fee in this case? A. I don’t think so. Q. Based upon recovery? A. I don’t think so. Q. Will you say that there was not? A. I don’t recollect any.”
Mr. Baker was the source of claimants’ authority and the sole person by whom they were retained. In view of claimants’ omission to call him, the learned referee might well infer that there was no such absolute employment from the deceased, as claimants would assert; that deceased did not bind himself to pay for all legal services rendered by the lawyers for all the eight complainants in that suit.
No error appearing, I advise that the decree of the Surrogate’s Court of Westchester county be affirmed, with one bill of costs.
Jenks, P. J., Mills, Rich and Blackmar, JJ., concurred.
Decree of the Surrogate’s Court of Westchester county affirmed, with one bill of costs.
