Rogers v. Polytechnic Institute of Brooklyn

84 N.Y.S. 12 | N.Y. App. Div. | 1903

Hirschberg, J.:

The plaintiff is an attorney at law, and was employed by the defendant to collect from the city of New York certain overpaid water rates, in consideration of which he was to receive one-half of the sum collected. The contract is in writing, signed by the president of the defendant on its behalf. It was prepared by the defendant, and the essential part is as follows: “You are hereby authorized to collect the sum you referred to as due the Polytechnic Institute from the city for upwards of two years (overpaid to city in the past); it being understood and agreed that the Institute is to be liable to no expense or trouble in the matter; in consideration of which circumstances and of your services, we agree to pay you one-half the amount you shall collect on the claim referred to.”

The amount collected by the plaintiff and paid to the defendant was $230, but the defendant insists that the plaintiff’s services were wholly unnecessary inasmuch as the city authorities intended to refund the money in any event, and would have done so without the intervention of a lawyer. The defendant’s president testified that before he signed the contract he had a conversation with the plaintiff by telephone as follows: “ He then told me it was a claim against the city for a refund of water taxes to which we were entitled and I think he mentioned the period covered and specifically the amount. Then I asked him if that was recovery from the city which we could not obtain without his services. I said if this is a claim which will come back to us without your intervention we ought not to pay you for it,’ and he said ‘ that it was a matter which he had learned ,in the course of his investigation and that he had other clients with similar claims, a number of clients with similar claims.’ I said on that understanding I would sign and forward the agreement,’ which is embodied to that extent in the letter signed by me.”

It appeared that the plaintiff did have other clients with similar claims and that he had investigated and ascertained the amounts due them. He denied that his employment by the defendant was based orí any assurance by him that the rebate could not be collected without his 'intervention, nor was 'it distinctly testified to on behalf of the defendant that he did give any such assurance. The finding of the court below in favor of. the plaintiff upon the facts is not one which should be disturbed as contrary to the evidence or the weight of evidence, and no exception was taken by the defendant upon the trial.

It is not claimed that the contract is unconscionable or that it was procured by fraudulent representations. The appellant’s claim is that if the money would have been refunded in any.event the contract is void for want of consideration. The plaintiff concededly brought the claim to the defendant’s attention, prepared and filed an affidavit as to the basis of its assertion, adjusted the amount with the city officials, and in that manner rendered services of some value in facilitating and expediting the collection, even assuming that the amount would have been paid to the defendant some day without the presentation of a claim. The only defense set up is a general denial. A good consideration is expressed in the contract, and it is very doubtful whether a partial failure of consideration can be established under the general issue. (Eldridge v. Mather, 2 N. Y. 157 ; Dubois v. Hermance, 56 id. 673. See, also, Runyan v. Nichols, 11 Johns. 547 ; Rittenhouse v. Creveling, 38 N. Y. St. Repr. 280 ; Sprague v. Sprague, 80Hun, 285 ; Springers v. Dwyer, 50 N. Y. 19 ; Milbank v. Jones, 127 id. 370.)

The judgment should be affirmed.

Woodward, Jenks and Hooker, JJ., concurred; Bartlett, J., not sitting.

Judgment of the Municipal Court affirmed, with costs.