O'Neill v. Campbell

| N.Y. App. Div. | Mar 8, 1907

Dissenting Opinion

Ingraham, J. (dissenting):

The complaint alleges that on or about June 21,1905, the defendant, James Quinn, “ by retainer in writing, retained and employed the plaintiffs to act as his attorneys and to institute on his behalf an action against the defendant, Christopher Campbell, to recover damages for personal injuries sustained by the said James Quinn on June 21st, 1905, while in the employ of the said Campbell, and did then and there agree with the plaintiffs that they, the plaintiffs, should receive fifty per cent of any settlement, verdict or recovery had in said action, and that plaintiffs should receive in' addition thereto all the costs of the action recovered or to which the said James Quinn might-be entitled that in pursuance of this retainer the plaintiffs, as attorneys for the said Quinn, commenced an action in tlie Supreme Court to recover damages for the personal injuries so sustained by Quinn; that on or about thé 29th day of August, 1905, “ the said defendants, wrongfully contriving and conspiring to deprive these plaintiffs of their compensation for their services ■ in said action under the agreement as aforesaid, did collusively and without the knowledge of the plaintiffs, settle the said cause of action so sued upon ” for the sum of $300. The relief demanded is that the plaintiffs be adjudged to have a lien upon said settlement and that they have judgment against'the defendants for the sum of one-half thereof and for. such other relief as the court may deem proper.

The defendant Campbell interposed an answer, which in substance was a general denial. The court found the facts as alleged in the complaint and awarded judgment for $150 against the defendants.

One of the plaintiffs, was examined as a witness • and testified to the commencement of the action of Quinn against Campbell; of the service of a summons on. the defendants, and the appearance of the defendant on September 18, 1905; the subsequent service of an unverified complaint, and the service of a verified answer by the defendant. Plaintiffs then called the defendant Quinn, who testified that he signed the retainer which was introduced in evidence.

The accident which caused the defendant Quinn’s injufiés' was alleged in the complaint to have occurred on the 21st of June, 1905, and the alleged retainer was dated June 22,1905. That instrument read as follows:

“I, James Quinn, aged 42, occupation bricklayer, the .under-, signed, of 310 E. 44th St., do hereby employ O’Neill & Shay, counsellors at law, to institute legal proceedings in my behalf against the proper defendant or respondent to' recover damages sustained by me on or about the 21st day of June, 1905, and I do hereby agree with my said attorney to pay him fifty per cent of any settlement, verdict or recovery had in said action, and he in addition thereto to receive all costs recovered or to which they may be entitled. And I agree with my said attorney not to make any settlement unless they are present ajid receive their share in accordance with this agreement, and I do hereby grant to my. said attorneys full power to act for me in bringing about a compromise or settlement of my case the same as if I were present.

“Dated New Yoke, June 22, 1905. • JAMES QUINN.

“Witness:

“ Bobt. B. Booh,

“ David J. Widkentz.”

Quinn further testified that he received $300 in settlement of his action against Campbell and that he never paid anybody any part of it. On cross-examination the witness testified that lie never saw either of the plaintiffs before the day of trial; that the circumstances under which he signed the paper were that an unknown person came to him the day he was injured and when he signed the paper asked him if he “ needed anything for the house — would I need any money. I told him no, not at present, I had some money coming off a job. He (the unknown person) said ‘ all right, maybe within a week or so I will come around to see you.’ I said ‘ all right, may be I will need some after this; ’ ” that it was either seven or eight weeks after that before the witness saw anybody connected with the plaintiffs; that he never had any correspondence with them and was never in their office ; that he was never asked to sign any paper other than the alleged retainer; that neither of the plaintiffs ever called upon him. On redirect examination he stated that he did not know anything. about the date of the paper ; that he signed it the day he was injured and knew he was employing a firm of lawyers. This is all the evidence in the case.

The only question presented is whether this instrument was a retainer which gave to the plaintiffs a lien upon Quinn’s cause of action to recover for personal injuries. Section 66 of the. Code of Civil Procedure provides that “ the compensation of an attorney or counsellor for his services is governed by agreement, express or implied, which is not restrained by law.” This plainly means an agreement which is recognized by the law as a valid agreement. An agreement obtained for a consideration which is invalid or upon inducement which is expressly prohibited would not be an agreement which was “ not restrained by law.” The relations between an attorney and his client are regulated by article 2¿ of title 2,-of chapter 1 of the Code of Civil Procedure of which section 66 is a part, and the provisions of section 66 of the Code of Civil Procedure, which provides for an agreemént not restrained by law, do not include an agreement which, by a.subsequent provision, is made illegal or is prohibited. Such an agreement would be an agreement restrained by law. Section 74 of the Code of Civil Procedure provides that' “ an attorney or counsellor shall not by himself or by or in the name of another person, either before or after action brought, promise or give or procure to be promised or given a valuable consideration to any person as. an inducement to placing or in consideration of having placed in his hands or in the hands of another person a demand of any kind for the purpose of bringing an action thereon.” And section 75 of the Code of Civil Procedure provides that an attorney or counsellor who violates section 74 is guilty of a misdemeanor. If this section, therefore, was violated or the execution of this instrument was obtained by the promise of a valuable consideration to Quinn as an inducement to place or in consideration of having placed in the hands of these plaintiffs this demand for the purpose of bringing an action upon it, it was an agreement which the law prohibited and was not a retainer within section 66 of the Code of Civil Procedure.

The rules of the common law in regard to the relations between attorney and client have been abolished in this State and the parties .are left to determine the compensation" of a lawyer by agreement. Such agreement, however, must comply with the further provisions of the Code of Civil Procedure. The right of the plaintiffs to recover from the defendant Campbell depends upon the plaintiffs having a lien upon Quinn’s cause of action against Campbell which plaintiffs could enforce as against Quinn. When the person obtaining the execution of this retainer asked Quinn if he “needed anything for the house; ” and upon Quinn replying that he did not need money at present, as he had “some money coming off a job,” the person'obtaining the agreement said, “all right, may be within a week or so- I will come around to see you ; ” to which Quinn replied, “All right, maybe I will need some after this,” there was, I . think, a promise to Quinn to give'him money if he needed it. Quinn does not testify that this promise was a consideration for his execution of this agreement, but it certainly was an implied promise to provide him with money if he needed it, made at the time the instrument was executed, and was a violation of section 74 of the Code of Civil Procedure.

■ So far as the enforcement of civil rights are affected, the plaintiffs, by accepting the benefits of the agreement and attempting to enforce it, adopted the representations and promises that, were made at the time it was executed, and they are thus seeking tb enforce an ■ agreement which was obtained under circumstances which made the person procuring it guilty of a misdemeanor. The fact that the promise to give money was indefinite, the amount and time of payment not being fixed, and the conditions under which the payment should be made not settled, does not relieve the transaction from the condemnation of section 74 of the Code of Civil Procedure. It Avas an understanding that Quinn should receive a valuable consideration as an inducement to retain the plaintiffs to commence an action against his employer; a promise having for its object the inducing of Quinn to retain the plaintiffs as attorneys. I think an agreement thus procured is “ restrained by law,” and thus an agreement which gives no lien to the attorney upon his client’s cause of action, and one that the court should "not enforce. The object of making this promise is plain. It could have no other purpose than to induce Quinn to retain the plaintiffs, and if a promise obtained under such circumstances is enforced, a simple method is provided for evading the prohibition contained in section 74 of the Code.

It follows that the judgment appealed from should be reversed and a new trial ordered, Avith costs to the appellant to abide the event.

Lambekt, J., concurred.

Judgment affirmed, Avith costs. Order filed.

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Lead Opinion

Laughlin, J.:

The material facts are fully stated in the opinion of Mr. Justice Ingraham. It does not appear that the conversation between the client and the person who represented the plaintiffs in procuring the retainer, upon which it is sought to invalidate it, took place before the retainer was signed, or that the client was induced thereby to execute the retainer. I am of opinion, therefore, that' the appellant failed to show facts sufficient to require an adjudication that the retainer was invalid.

It follows that the judgment should be affirmed, with costs.

Patterson, P. J., and Houghton, J., concurred; Ingraham and Lambert, JJ., dissented.