Johnson v. Ravitch

99 N.Y.S. 1059 | N.Y. App. Div. | 1906

Gaynor, J.:

The relation of attorney and client is One of the highest trust and confidence, and it is therefore the unquestioned rule that'a client may change his attorney at will, cause or no .cause.

This action is to recover damages for personal injuries by negligence, and the superseded attorney for the plaintiff brought- it finder an agreement with her that he was to receive 50 per cent, of any sum recovered by settlement or judgment. The cause was at issue and on the calendar of the Supreme Court in Kings county for trial. The practice of that court (well known to the bar) is to have a general call of its general calendar periodically on due notice of 500 causes, or less, in numerical order, to ascertain the causes ready for trial, and as a warning that they are about to reach the day calendar for trial. The causes marked off on such a call-lose their priority over the causes marked ready. Upon such a call this cause was called and marked off for the reason that the plaintiff’s attorney did not answer on the call. The result was to postpone the plaintiff’s cause below 326 causes subsequent to hers on the calendar, and this would delay the trial of her cause some months, owing in some measure to the lack of trial judges.

Thereupon the plaintiff obtained an order to show cause on her affidavit why an order should not be made substituting other attorneys in the stead of her said attorney, and fixing his compensation “ for services herein to date, and declaring said sum a first lien upon any recovery had in this action,” her affidavit stating that she was without means to pay him presently.

•Ko question was made that the attorney’s compensation had to be fixed, nor is any such question made now; on thé contrary, the fixing of such compensation was voluntarily submitted to the court by both sides. The attorney therefore submitted his own and three other affidavits to the eourt.below, reciting what had been done by him as attorney, and giving facts to excuse him in the matter of his said neglect, and to show that he had not been guilty of misconduct, all of which of course bore on the question of whether he was entitled to any compensation, and if so how much.

The learned judge below did nothing but decide the question submitted to him — he granted the order of substitution, fixing therein the amount to be paid the superseded attorney for his services at $50, and making the same a first lien, on any recovery whether by settlement' or judgment.

If we reverse the- order it can only be on the ground that the amount allowed is too small. I do not see how we can say it was too small. The attorney had done practically nothing except draw the complaint and put the cause on the calendar. The learned judge below'knew the attorney, was competent to put a true value on the service he had. rendered, and it must not be .overlooked that the case was submitted to, him for that very purpose. The first point of the brief of ..the said attorney on .this appeal is that he was not guilty of misconduct; the. second is that “the court failed to protect” his interest; the third is that it erred in directing him to deliver the papers to liis successors,, for the reason that it, thereby destroyed his lien; the fourth is that the order- should be modified tq the effect-that his lien and contract “be in .nowise impaired by this order, but remain in full force and effect ;” and the last is the inconsistent one that the prder.be reversed, for which no. reason is-assigned,at all. The order expressly gives the attorney a first lien, so that the -request. that it he so modified as to preserve, his lien is needless, as is the case for the same.reason with the point that his lien is destroyed by the direction to deliver'over the, papers. As to • his contract, it is,at an end, for the law will not permit him to be paid for services which he does, not perform. The-Iawisnot so inconsistent,, not to say unjust,, as that. Every, attorney enters into the service; of his. client subject to the rule that his, client may dis.miss or supersede him at will; and if he makes a contract for future services to his client, it is necessarily subject to such rule, and made with full, knowledge that he may never perform such'service, for the reason, that his, client; may .not keep .him, and. that in that event he will not be paid therefor, but. will be entitled to compensation only for. the services, he has actually, rendered, . .,

The order should be affirmed.

Jenks, Hooker, Rich and Miller, JJ., concurred.

Order affirmed,, with ten dollars, posts and disbursements.