72 N.Y.S. 812 | N.Y. App. Div. | 1901
Royal S. Crane was attorney of record for the plaintiff in an action in the Supreme Court brought to recover damages for seduction under a promise of marriage. The defendant Leroy B. Crane is also an attorney and was a brother of Royal S. Crane. The plaintiff claims that Leroy B. and Royal S. were partners, and, as such, equally interested in said action, and that they employed him as counsel to manage, conduct and try the same. This action was originally brought against them for the services which the plaintiff rendered in the seduction action. Royal S. Crane died after the commencement of the action and, by order of the court, it was continued
Upon the trial plaintiff gave evidence of the nature and extent of the services rendered by him, tending to show that he was to receive nothing for his services unless the plaintiff was successful in the action. Two attorneys were called as experts for plaintiff on the value of his services and, in answer to a hypothetical question, gave their opinion as to the fair and reasonable value of the services rendered by him. This hypothetical question, after reciting at length the nature and extent of the services rendered and the amount received on the settlement of the action and the amount deducted for the services of the attorney of record, ended with the following clause: “ And, assuming that the compensation of the lawyer as so employed was entirely speculative and dependent upon success, what, in your opinion, would be the fair and reasonable value of the services as stated in that hypothetical question ? ”
When this question was propounded to the first witness defendant’s counsel objected upon the ground, among others, that it recited facts which were not germane to the services upon which the witness was asked to pass, and that it assumes a number of facts not essential to the determination of the value of the services rendered as stated, and thereupon addressing the court, said, “Your Honor has already stated that the question of speculative element is not germane to this question,” to which the court replied, “ I did not so state. He has now remedied the vice which I found in the for
When the hypothetical question was propounded to the second witness defendant’s counsel objected upon the same grounds and upon the further ground “ that under the pleadings and the proof the question is solely directed to the reasonable value of the services, or can only be directed to the reasonable value of the services rendered without an element of speculation in it.” This objection was overruled, and defendants’ counsel excepted, and the witness answered from one-half to two-thirds of the fee received by the attorney.
On the record before us the question presented for determination was, what was the fair and reasonable value of the services actually rendered, in view of the nature and importance of the litigation, the standing of the attorney in his profession “ for learning, skill and proficiency,” and of the importance to the client of the result, and such value could not be augmented by the fact that plaintiff’s services were to be performed gratuitously in the event that the action was not successful. (Randall v. Packard, 142 N. Y. 47, 56 ; Harland v. Lilienthal, 53 id. 438; Walbridge v. Barrett, 118 Mich. 433 ; Robbins v. Harvey, 5 Conn. 335 ; Middleton v. Bankers' & Merchants’ Tel. Co., 32 Fed. Rep. 524.)
It, therefore, follows that' the court erred in not excluding from the hypothetical question the contingent element of the employment, and it is manifest from the nature of the answers given by the witnesses that the error was prejudicial to the appellant.
The judgment and order appealed from should be reversed, and a new trial granted, with costs to appellant to abide the event. .
Van Brunt, P. J., Patterson, Ingraham and Hatch, ' JJ., concurred.
Judgment and order reversed, new trial ordered, costs to appellant to abide event.