—In an action, inter alia, for partition, the former attorneys of the plaintiff appeal from an order of the Supreme Court, Suffolk County (Gowan, J.), dated September 14, 1993, which denied their motion to fix and determine the reasonable value of their services.
Ordered that the order is reversed, on the law and the facts, with one bill of costs to the appellants appearing separately and filing separate briefs, the motion is granted, and the matter is remitted to the Supreme Court, Suffolk County, for the entry of a judgment, including interest, awarding attor
Attorney Alvan Hutchinson moved for an order "fixing the value of attorney’s fees earned by [him] * * * on a quantum meruit basis”. In his motion papers, he also requested that the court fix the attorney’s fees owed to his son, Richard Hutchinson. The elder Mr. Hutchinson had represented the plaintiff, Herbert T. Mahan, Jr., until October 21, 1991, when he was suspended from the practice of law. His son, Richard Hutchinson was then substituted as counsel, and continued to represent Mr. Mahan until he, in turn, was replaced by another attorney.
According to Alvan Hutchinson’s affidavit in support of his petition, he had originally been retained by Herbert Mahan in 1981. In 1984, he commenced an action for the partition of the two separate properties in which Herbert and his brother, Ralph Mahan, had interests, either as partners in a partnership, or as tenants in common. In 1985, a contract for the sale of one of these properties was signed, and this contract was closed on February 26, 1986. Alvan Hutchinson billed Herbert Mahan for the legal services connected with this closing and, according to the Supreme Court, received the sum of $28,654 out of the proceeds of the sale.
The legal dispute between Herbert Mahan and his brother continued after the sale of the first property, in light of Herbert Mahan’s claim that his brother still owed a duty to account for the income which the two properties had generated from 1972 to 1986. The dispute was further complicated as a result of the assertion by Ralph Mahan that the second property was owned by a partnership and thus not subject to partition. Alvan Hutchinson, representing Herbert Mahan, then commenced a proceeding to dissolve the partnership. This proceeding was then consolidated with the ongoing action for partition.
This consolidated action and proceeding eventually went to trial before a Judicial Hearing Officer. At some point, Ralph Mahan offered a settlement agreement pursuant to which he would, inter alia, make a full accounting for the period 1972 to 1992. According to Alvan Hutchinson, Ralph Mahan then "stalled in producing his accounting up to the time of [his] substitution [as attorney]”. Ralph Mahan offered to settle the matter by stipulating "that he had indeed failed in his fiduciary duty as a partner”.
Both Alvan Hutchinson and Richard Hutchinson had originally agreed to wait until "the conclusion of the matter and/ or the sale of the [second] property” before they submitted a bill to Herbert Mahan. They each unsuccessfully requested payment from Herbert Mahan after he had discontinued the underlying action. Thereafter, Alvin Hutchinson moved for an order fixing the attorney’s fees.
The evidence in the record on appeal contains various bills submitted by Alvan Hutchinson and Richard Hutchinson. One, from Alvan Hutchinson, dated August 27, 1992, demanded payment of $58,208.80. Another bill from Richard Hutchinson demanded payment of $20,654.50. Another, from the law firm of Hutchinson & Hutchinson, demanded payment of $78,815.80. These bills all claim to itemize in detail the legal services performed.
After a hearing, the Supreme Court found, inter alia> that Alvan Hutchinson "was fully compensated for the legal services rendered from May 25, 1984 through May 21, 1986” by the payment of the sum of $28,654 after the sale of the first property. The Supreme Court also held that Alvan Hutchinson was not entitled to any compensation for services rendered after May 21, 1986. This holding was based, inter alia, on the Supreme Court’s conclusion that Mr. Mahan "derived no appreciable benefits from the legal services rendered * * *
The Supreme Court also found that Richard Hutchinson was entitled to the sum of $12,205.50 as legal fees, and $2,294.50 in disbursements. The court also concluded that Herbert Mahan’s payment of $12,500 to the firm of Hutchinson & Hutchinson and his payment of $2,000 to Richard Hutchinson, which payments were made prior to the date on which Alvan Hutchinson brought this motion, "constituted full payment of the compensation due and owing to [Richard Hutchinson]”. In accordance with these findings, the court order allowed for no further award of attorney’s fees and in effect denied the motion. We reverse.
Contrary to the conclusion reached by the Supreme Court, Alvan Hutchinson is entitled to receive compensation for the period from May 21, 1986, until the time of his suspension. The weight of the evidence does not support the finding of fact that Alvan Hutchinson in effect agreed to work without compensation in the event the ongoing litigation against Herbert Mahan’s brother proved fruitless. Nor does the fact that this litigation turned out to be fruitless, because of Herbert Mahan’s own decision to discontinue it, deprive Alvan Hutchinson of his right to reasonable compensation for his time.
Even if Alvan Hutchinson had made a contingency fee agreement with Herbert Mahan, whereby no fees would be incurred unless the litigation against his brother were fruitful, the fact remains that Herbert Mahan’s decision to discontinue that action would not automatically deprive Alvan Hutchinson of his right to be compensated for the reasonable value of his services (see generally, Andrewes v Haas,
The Supreme Court identified several other factors as grounds to deny Alvan Hutchinson’s motion. In our view, none of these is of such significance as to deprive Alvan
We also find that the weight of the evidence supports an award of $18,360 in attorney’s fees to Richard Hutchinson plus disbursements of $2,294.50. Mangano, P. J., Bracken, Altman and Goldstein, JJ., concur.