109 N.Y.S. 977 | N.Y. App. Div. | 1908
Lead Opinion
The evidence justified the finding at Special Term that the assignment by Count W. Weeks to his brother Oakley Weeks of the claim against the Coe estate was in consideration of and as security for the sum of $500, and that there was no other consideration for such assignment. The agreement between plaintiff and the attorney Whitehead was not void for champerty. Although it took the form of an assignment of the claim, it amounted in substance to an agreement that the attorney should retain a portion of the proceeds of the claim'as his compensation and by way of repayment of any expenses to which he might be put. He did not promise to advance any part of the expenses, although he had already been obliged to expend some money and would probably have to expend more if the prosecution of the claim was to be persisted in, since Count W. Weeks was apparently unable, and Oakley Weeks certainly unwilling, to advance any money towards the prosecution of what then seemed to be a most doubtful claim. Nor was the attorney’s agreement made as an inducement to have the claim put in his hands, or in consideration of its having been so put. He had been retained by Count W. Weeks and had taken steps to prosecute the claim long before any agreement was made as to his compensation. .
The only question in the case which seems to be at all troublesome arises from the proportion of the claim which it was agreed should be retained by the attorney. Prima, faoie it seems to be inordinately large. We may not, however, condemn it solely for that reason if it appears that the agreement was deliberately entered ’into by the client and was free from fraud and not so excessive as to
As the case is presented, therefore, the plaintiff has recovered the amount for which he took the assignment as security. He is, therefore, in no position to question the amount retained by the attorney as compensation. Count W. Weeks has not so pleaded as to entitle himself to question the amount, and the other parties, who might be benefited if the attorney’s executor was required to repay a part of the compensation, are content with the judgment as it stands. Hnder all these circumstances we find no occasion to disturb the judgment, which must be affirmed, with costs to the executor, respondent.
McLaughlin, Clakke and Houghton, JJ., concurred.
Concurrence Opinion
I concur with Mr. Justice Scott. Since the decision of the Court of Appeals in Matter of Fitzsimons (174 N. Y. 15), I do not understand that we can hold any agreement between an attorney and his client as to his compensation to be void without proof of the amount that the attorney would receive under the contract, the value of the services that he rendered and .the other facts in relation to the making of the agreement. In that case this court held
I, therefore, concur in the affirmance of the judgment.
Judgment affirmed, with costs to executor.