121 N.Y.S. 1070 | N.Y. App. Div. | 1910
This proceeding arose on the application of the appellant Eieser for a substitution of Messrs. Douglas & Armitage for Messrs. Moss & Eeiner as his attorneys in this action brought by Zimmer
The motion came on for a hearing at the Special Term on the 24th day of July, 1907. The court granted an order of substitution and directed Messrs. Moss & Feiner to deliver the pleadings and other papers to Messrs. Douglas & Armitage within live days after the execution and'filing by the client of a bond with sureties to be approved by the court in the sum of $1,500 conditioned for the payment of “ any sum or sums which may be hereafter established in this proceeding to be due and owing by the said Rieser to Moss & Feiner for professional services, and for which they have a lien upon the papers herein ” and • the order referred it to an attorney and counselor to take proof as to what sum, if any, was due or owing by Rieser • to his attorneys “ for any and all professional services or disbursements, and for which they have a lien upon the papers in the above-entitled action.” No evidence was offered before the referee and no claim was made that there was anything due or owing to the attorneys from their client for services or disbursements in the action brought by Zimmerman, or that by reason of anything done of agreed to be done by them in that action they had any lien upon, the papers. It was, however, shown and found that the attorneys were employed by Rieser on or about the 2d day of October, 1906, with respect to a controversy existing between him and one Stokes, based on a contract between them by which Rieser was to manufacture and deliver certain fixtures and trim to Stokes to be used in the construction of the Hotel Ansonia. The attorneys and their client disagreed with respect to the terms of their employment in that matter. They agreed ' that the attorneys were employed to begin' and prosecute an action for Rieser against Stokes for a breach of the contract, but the attorneys claim that there was an express agreement by which they were to receive
Feiner denied that he had a conversation over the telephone as testified by Rieser, and says that there had been no dispute with respect do the express agreement for their services in the Stokes matter as claimed by them. The client replied to this letter on May 1, 1907, asserting, in substance that it was agreed between him and Feiner before the settlement that the attorneys’ charges would only be $250 and that he considered that the check paid in full for the services. The attorneys then wrote him on May 2, 1907, reiterating their claim. Feiner testified that thereafter Rieser in a conversation with him over the telephone promised to adjust the matter but failed.to do so, and that another letter was written to him on May 11, 1907, asking that lie call and adjust their fees the early part of the next week; that lie then had another conversation with Rieser over the telephone in which an appointment was made which Rieser did not keep ; that another letter was written on May 23, 1907, demanding that the matter be disposed of that week ; that he had informed Rieser that he contemplated sailing for Europe on the sixth of June of that year and. that as he had had principal charge of the Stokes matter and had had the interviews and negotiations with Rieser, he was desirous of adjusting the matter before his departure ; that on May 27,1907, he wrote Rieser another letter stating that.in view of the latter’s refusal to call and of his indifference to their communications, unless their fees, amounting to $250, plus ten per cent of the amount of the settlement, were adjusted by the day following “ we shall decline to act for you in the pending cases of Zimmerman vs. Loft and Rosenthal vs. Rieser, and shall at once start suit for the full amount' due us in the Stokes matter: ”
“We regret that your conduct has necessitated a law suit, but as you seem to have an aversion to paying your lawyer’s fees there is nothing left for us to do but start suit at once, which we shall now do without further delay.”
We are of opinion that the learned Special Term should have granted an order for substitution and have directed Messrs. Moss & Feiner to deliver the pleadings and papers in the Zimmerman action to the substituted attorneys unconditionally. The controversy between ' them and their client with respect . to their fees in the Stokes matter did not justify their attitude in refusing to continue to represent him in the Zimmerman case. There may have been originally an express agreement between tliem and their client as they claim with respect to their fees in the Stokes matter and action, but it does not follow that that agreement would have entitled them to the fees which they claim, for it is not at all clear that the $3,500 received by their client from Stokes was received in the action which they had brought against Stokes or solely on account of the settlement thereof. They took no part in bringing about the settlement and they did not render the services
It is further contended in behalf of Moss & Feiner that even though their client were at liberty‘to accept their letter of May 31, 1907, as a discharge of themselves as attorneys, still he did not do so, and he waived his right ,in that regard by further negotiations with- them, and that before he finally employed other attorneys they withdrew from the position which they took in' that letter and refused to consent to a substitution. On the reference Rieser was not interrogated with respect to any further conversations or correspondence between him and Moss & Feiner, but it appears from his moving affidavit that, acting upon their letter of May 31, 1907, he called upon Messrs. Douglas & Armitage and employed them to protect his interests and to be substituted in both litigations referred
“We shall be pleased to afford whomever you choose to substitute in our place every opportunity to conduct these appeals to a successful conclusion, and the papers and substitutions are ready to be turned over, but we feel that it is up to you to-treat us fairly in the Rieser vs. Stokes matter before we should reciprocate in other matters.
“. To bring the matter to a head, we will accept in full settlement the sum of $350 in Rieser vs. Stokes, plus our actual disbursements of $43.20 in Rosenthal vs. Rieser.
“If you will send us a check for this amount you can be assured of our best endeavors to facilitate you in other matters.”
Rieser does not state the date on which he first consulted Armitage, but I think it is fairly to be inferred that he did so before, writing the letter of June twenty-second; but Armitage’s affidavit indicates that it was later.
Much of the correspondence between Rieser and his attorneys was conducted in his firm’s name, and it appears that under date of June 8, 1907, his firm wrote a letter to his attorneys as follows: “ Onr Mr, Rieser will see you some day next week, regarding you
It follows, therefore, that the order should be reversed in so far as it adjudges that the attorneys had a lien, in so far as it adjudges
Ingraham, P. J., Clarke, Scott and Miller, JJ., concurred.
Order reversed to extent stated in opinion, with ten dollars costs ■ and disbursements to appellant Bieser; and report of referee modified, and as modified confirmed, with costs, as stated- in opinion. 1 Settle order on notice.