121 N.Y.S. 627 | N.Y. App. Term. | 1910
This is an action by plaintiff, as assignee of Wales F. Severance, an attorney at law, to recover for legal services agreed
Having examined the original record in this case, I think that its effect has been misapprehended, and that it has only a superficial similarity to the case at bar. Mr. Barnes had undertaken the collection from the United States treasury of certain customs duties claimed to have been exacted tinder an unconstitutional law. Test cases were pending in the Supreme Court of the United States, which Mr. Carlisle was to argue as leading counsel. Barnes was not a lawyer, and had taken up the cases o'n a contingent fee of 20 per cent, of the recovery, with the understanding .that he should hire a lawyer and pay ,him out of the 20 per cent. He approached Carlisle with this in view in the fall of 1900, and they had conferences in which legal advice was given. The questions involved related not only to the constitutionality of the law, but also to the form of remedy. Barnes had previously retained another lawyer, who had brought a suit which had been thrown out of the United States Circuit Court for mistake as to the remedy (Lascelles v. Bidwell, 102 Fed. 1004), at large expense to his clients. The remedy then suggested by the Circuit Court was afterwards held to be also a mistaken one. Goetze v. United States, 182 U. S. 221, 21 Sup. Ct. 742, 45 L. Ed. 1065. The test cases were argued in the United States Supreme Court in January, 1901. While he did not attempt thereafter to hold Barnes to the original verbal understanding, nevertheless the advice that he had given during the previous autumn put the latter under considerable moral obligation. A definite contract was made between them in February, by which Carlisle was to receive one-fourth of- Barnes’ 20 per cent, in case of success; and he continued thereafter to give advice, although his advice had not yet been followed when the Supreme Court handed down its decisions, on May 27th, sustaining his contention both as to the unconstitutionality of the exaction and as to the form of the remedy. Dooley v. United States, 182 U. S. 222, 21 Sup. Ct. 762, 45 L. Ed. 1074; Downes v. Bidwell, 182 U. S. 244, 21 Sup. Ct. 770, 45 L. Ed. 1088. The United States ac
The present is not a case of fixed or contingent fee. Here defendant’s promise was to pay a retaining fee before the commencement of the services for which he was to be compensated. Plaintiff relies on the definition of retaining fee in Matter of Schaller, 10 Daly, 57, where it is defined as “intended to remunerate counsel for being deprived, by being retained by one party, of the opportunity of rendering services to the other, and receiving pay from him.” See, also, Pierce v. Newlin, 46 Misc. Rep. 122, 124, 91 N. Y. Supp. 377. The fee thus defined is the so-called “retainer out.” The ordinary present definition of a retaining fee or retainer is different. It is a payment in advance, to cover future services and disbursements until further provision is made. If it is not paid, and no services are rendered, I do not see any basis upon which it can be sued for. ¡
But Mr. Severance had already given some advice before the arrangement for the .retainer was made. He is entitled to recover for the value of that. He complains, and it may be true, that defendant came to him, holding out expectation of future employment, in order to get an opinion as to his affairs, and then go to another lawyer in hopes of cheaper services. The matter involved here was stated by the defendant to be $6,000 or $8,000. The advice was not purely negligible in character, but of value. The facts are not fully stated; but we regard it as sufficiently established that the services rendered were worth $25, if not more.
The judgment should be reversed, and a new trial ordered, with costs to the appellant to abide the event, unless plaintiff stipulates to reduce the amount of the judgment to $25 and costs, in which case it should be affirmed, without costs. All concur.