103 N.E. 164 | NY | 1913
The action is for the determination and foreclosure of an alleged lien had under section
Section 475 is: "From the commencement of an action or special proceeding, or the service of an answer containing a counterclaim, the attorney who appears for a party has a lien upon his client's cause of action, claim or counterclaim, which attaches to a verdict, report, decision, judgment or final order in his client's favor, and the proceeds thereof in whomsoever's hands they may come; and the lien cannot be affected by any settlement between the parties before or after judgment or final order. The court upon the petition of the client or attorney may determine and enforce the lien."
The essential and determining facts, as found by the trial court and unanimously affirmed by the Appellate Division, are: McLeod having sustained personal injuries while in the performance of his duties as a fireman of the railroad company retained the intestate by a written contract to commence an action against the railroad company to recover his damages sustained by reason of its negligence and agreed to pay him one-third of the amount received in case the claim was settled without trial and fifty per cent of the amount received in case of trial whether the same was compromised thereafter or not. The intestate caused a notice of claim under the Employers' Liability Act and a summons and complaint in the action to be served upon the railroad company. The *363 company duly appeared and answered in that action denying its negligence. In October, 1910, and as the action was about to be tried, the intestate died and the plaintiff was immediately appointed, and retained attorneys in behalf of the estate. Thereupon a conversation between McLeod and one of those attorneys in reference to their substitution as his attorneys in the action was had at her request; but the substitution was not made and he did not counsel with any other attorney as to the continuance of the action, nor did any attorney other than the intestate render any services in the action. In November, 1910, the railroad company, having express notice of the contract between McLeod and the intestate, and agreeing to protect McLeod against any liability thereunder in favor of the plaintiff and acting in good faith and in the belief that the intestate's death terminated the contract and that no lien thereafter existed in favor of the plaintiff, settled the action and claim by paying McLeod $5,000.00. The legal services of the intestate under the contract were the cause of the settlement at that amount. McLeod at all times subsequent to the injury, except only at the time of the settlement, was insolvent. The trial court determined the lien of the intestate at $1,666.66, one-third of the $5,000.00 as stipulated in the contract, and adjudged its foreclosure.
It is manifest that our first inquiry should be as to the nature and amount of the liability or obligation of McLeod to the plaintiff. In any aspect, the liability of the railroad company to the plaintiff does not exceed that of McLeod. The plaintiff could not recover from McLeod, under and by virtue of the contract between him and the intestate, the compensation McLeod agreed to pay, because the intestate did not wholly perform the obligations it imposed upon him. It obligated him to prosecute or ripen the cause of action into moneys received by McLeod through either a judgment or a settlement. He ceased to act before a settlement was made and as the *364 cause was about to be tried. It is true that the cessation in performance was caused by his death, but it left undone that which he had agreed to do precisely as though it resulted from a physical or mental incapacitation at that time, or a capricious or unjustifiable abandonment of the case. It left the trial and the proceedings terminating in a judgment and its collection if in favor of McLeod, or the negotiations and transactions terminating in a settlement. The fact that the intestate in his lifetime did every act which was proper and necessary for him in order to protect and promote the interests of his client in the action, and that his services were the cause of the settlement, neither evidences nor effects the complete fulfillment of his obligations. What the issue of the cause would have been had the intestate been permitted to fulfill the contract is unknowable and nothing to the purpose. The intestate did not do that which he promised and which alone entitled him to the stipulated compensation from McLeod.
Not only was the performance which bound McLeod to pay the stipulated compensation incomplete at the death of the intestate, but the death abrogated the contract. It was within the rule that contracts for personal services requiring skill, which can only be performed by the person named, are held not of absolute obligation, under all circumstances, but subject to the implied condition that the person designated shall be able to perform. If a lawyer dies before he has prosecuted to a judgment or settlement a litigation which he has undertaken to conduct for a certain compensation, his contract is at an end, because both parties must be supposed to contemplate the continuance of his ability to perform as a condition of the contract (Baxter v.Billings, 83 Fed. Rep. 790; Matter of Dunn,
By virtue of section
The judgment should be reversed and a new trial ordered, costs to abide event.
CULLEN, Ch. J., WERNER, WILLARD BARTLETT, CHASE and CUDDEBACK, JJ., concur; HOGAN, J., not sitting.
Judgment reversed, etc. *366