45 N.Y.S. 977 | N.Y. App. Div. | 1897
This is an action by an attorney and counselor at law to recover a balance of $7,500, which he claims to be due to him from the defendant for professional services rendered by him upon her retainer in various matters during the years 1892, 1893, and 1894. The claim also includes items of money paid out and expended by the plaintiff for the defendant at her request. The case was tried before a referee, who directed judgment for the plaintiff in the sum of $2,951, with interest from the 1st day of July, 1894, and judgment was entered accordingly. The referee filed a decision, under section 1022 of the Code of Civil Procedure, stating concisely the grounds upon which the issues had been decided, and an exception was duly filed to such decision, which authorizes this court to review all the questions of fact and law in the case. There is no doubt that the plaintiff was employed by the defendant as her attorney and counselor at law, or that he rendered to her services of considerable value in that capacity. We are satisfied, however, that the amount awarded by the referee is excessive. We have carefully gone over each item of the plaintiff’s bill of particulars, and read all his testimony in support of each; but we have found hardly a single instance in which the charge made does not seem to us very much larger than the work warranted.
The only litigation of any importance which was conducted by the plaintiff for the defendant was a foreclosure suit relating to lands in Long Island City, in which judgment was eventually taken by de
In the referee’s report he not only finds that the plaintiff is entitled to recover $2,951 on a quantum meruit, but also that on the 1st day of July, 1894, the parties came to an accounting in relation to the plaintiff’s professional services, upon which accounting the said sum was found to be due, “which amount the said defendant then and there promised and agreed to pay. to the plaintiff.” This finding grows out of an interview between Mr. Tinney and Mrs. Pierrepont at the time when Mr. Tinney presented his bill in the matter of the foreclosure of the Long Island City mortgage. According to Mr. Tinney, Mrs. Pierrepont then promised to pay the bill; but it seems her promise was expressed by a question from her as to whether she should go upstairs then and there to draw a check, or whether the plaintiff would call on Monday. Mrs. Pierrepont, on the other hand, testified that the bill was not wholly made up when Mr. Tinney presented it, and that he said he did not know what to charge her, and wished she would put down the charge herself. “Then he put down $4,000. The items were all there as he put it down, $4,000, and explained to me that the $3,000 was the foreclosure, and the $1,000 was for the items,—these things that he did for me. I looked at it with a great deal of astonishment. I had no such thought of any such money. I said he would like to have this this evening, and he made this remark which is true, something about at my pleasure. I said, ‘You will call here on Monday evening, and I will see you about it,’ which he did.” Upon the Monday, plaintiff called, and Mrs. Pierrepont told him that he was not charging her right; that he knew it was wrong; and that she could not pay the bill. She declared on the witness stand that her remark about the check, in the first instance, was only a little diplomacy, and that she spoke ironically. Taking into consideration just what actually occurred at this inter
For the reasons stated, the judgment must be reversed, and a new trial granted, on account of the excessive amount awarded by the referee, unless the plaintiff will stipulate to reduce the recovery to $1,251, with interest from July 1, 1894. This allows him the costs in the foreclosure suit, as taxed, the various items for expenses, etc., which were contained in his bill, and $300 additional on account of his services in that case, making $1,301.38 in all in the foreclosure suit. To this is to be added $1,000 for his other professional work, making a total of $2,301.38. From this aggregate is to be deducted $1,050.38 on account of checks received by the plaintiff from Mrs. Pierrepont or to her use, leaving a balance of $1,251, as aforesaid. In case such a stipulation is given, the judgment as thus reduced will be affirmed, without costs to either party. All concur.