Imágenes de páginas
PDF
EPUB

First Department, March, 1910.

[Vol. 137. of April 27, 1907, for $424, the amount of their bill theretofore rendered, and in the letter stated that the check "is in settlement of all matters up to May 1st." They retained and cashed the check, and on the 29th day of April, 1907, wrote acknowledging his letter and the check, and said: "We desire to call your attention to the fact that the check is not in full settlement of all matters to May 1st, as stated by you. The bill specifically mentions the item of $250 in the Stokes case as a retainer merely. We call your attention to our definite arrangement in this case, and in view of its final settlement, we would thank you to send us a check for the balance due us."

Feiner denied that he had a conversation over the telephone as testified by Rieser, and says that there had been no dispute with respect to the express agreement for their services in the Stokes matter as claimed by them. The client replied to this letter on May 1, 1907, asserting in substance that it was agreed between him and Feiner before the settlement that the attorneys' charges would only be $250 and that he considered that the check paid in full for the services. The attorneys then wrote him on May 2, 1907, reiterating their claim. Feiner testified that thereafter Rieser in a conversation with him over the telephone promised to adjust the matter but failed to do so, and that another letter was written to him on May 11, 1907, asking that he call and adjust their fees the early part of the next week; that he then had another conversation with Rieser over the telephone in which an appointment was made which Rieser did not keep; that another letter was written on May 23, 1907, demanding that the matter be disposed of that week; that he had informed Rieser that he contemplated sailing for Europe on the sixth of June of that year and that as he had had principal charge of the Stokes matter and had had the interviews and negotiations with Rieser, he was desirous of adjusting the matter before his departure; that on May 27, 1907, he wrote Rieser another letter stating that in view of the latter's refusal to call and of his indiffer ence to their communications, unless their fees, amounting to $250, plus ten per cent of the amount of the settlement, were adjusted by the day following "we shall decline to act for you in the pending cases of Zimmerman vs. Loft and Rosenthal vs. Rieser, and shall at once start suit for the full amount due us in the Stokes matter;

[ocr errors]

App. Div.]

First Department, March, 1910.

that in reply they received a letter under date of May 28, 1907, stating that Rieser would call at their office the next day, but that he did not do so, and thereupon they wrote him a letter on May 31, 1907, as follows: "We received your letter stating that you would call here last Wednesday, the 29th inst. You neither called nor communicated with us in any way despite the fact that we telephoned your office several times on that day. Please take notice that we now refuse to act any further as your attorneys in either the case of Zimmerman vs. Loft or Rosenthal vs. Rieser. We stand ready to substitute any attorney you may name and shall be pleased to deliver over all papers. In connection with the Zimmerman case we again advise you that, in view of the missing exhibit, it will be useless to go further with your appeal. Mr. Arthur Rieser states positively that he placed this exhibit in your possession and you have failed to deliver same to us. The case has been settled by Judge NEWBURGER and is ready to be printed but for the reasons, firstly, that the exhibit has not been furnished to us, and, secondly, that you have failed to pay our fees, we do not see our way clear to go further with it.

"We regret that your conduct has necessitated a law suit, but as you seem to have an aversion to paying your lawyer's fees there is nothing left for us to do but start suit at once, which we shall now do without further delay."

We are of opinion that the learned Special Term should have granted an order for substitution and have directed Messrs. Moss & Feiner to deliver the pleadings and papers in the Zimmerman action to the substituted attorneys unconditionally. The controversy between them and their client with respect to their fees in the Stokes matter did not justify their attitude in refusing to continue to represent him in the Zimmerman case. There may have been originally an express agreement between them and their client as they claim with respect to their fees in the Stokes matter and action, but it does not follow that that agreement would have entitled them to the fees which they claim, for it is not at all clear that the $3,500 received by their client from Stokes was received in the action which they had brought against Stokes or solely on account of the settlement thereof. They took no part in bringing about the settlement and they did not render the services

First Department, March, 1910.

[Vol. 137. which it was contemplated it would be necessary for them to render when the agreement, if any, was made. Unless, therefore, they intended to insist upon an unconscionable demand against their client, his testimony to the effect that it was agreed that they only claimed $250 for services rendered down to the time he made the settlement is not improbable, and it is corroborated to some extent by his letter of March twenty-fifth, written to them to which they took no exception, and by their letter written to him after they were aware that the Stokes matter had been settled, in which they requested a check for the bill which they had rendered for $250 retainer in that matter, and made no claim therein for further fees. Nor is it at all clear that they were at liberty to use their client's check which had been sent in full satisfaction for their fees in the Stokes matter without such act constituting an accord and satisfaction of any further claim they might otherwise have on account of their agreement with him; but even though technically it did not constitute an accord and satisfaction, it was not the proper course to have taken with their client. He had plainly asserted his understanding that this check was in settlement of all matters between them to May 1, 1907. They should at least have communicated with him stating their understanding of the agreement and have afforded him an opportunity to withdraw the check. They had a remedy for any legal claim which they had against him for services. Their conduct in accepting the check and at the same time repudiating the condition on which it was sent by their client is not commendable. When an attorney is retained to prosecute or defend a case, that constitutes, so far as his obligation to his client is concerned, an entire undertaking to conduct it through, and he cannot withdraw from the case without just cause. (Halbert v. Gibbs, 16 App. Div. 126, 129, and cases cited.) They were at liberty of course at any time for just cause to terminate the relation of attorneys and client existing between them and Rieser, but if they did that without just cause, they forfeited their common-law lien on the pleadings and papers in the Zimmerman action. It cannot fairly be said on the evidence in this record that Rieser did not make the claim that they had been paid in full for their services in the Stokes matter in good faith. They had received $250 for those services, which would seem to be reasonable compensation for the

App. Div.]

First Department, March, 1910.

advice which they gave and for serving a summons and preparing a complaint. They were too hasty in the circumstances, and should have proceeded with the appeal in the Zimmerman case. By their letter of May thirty-first, therefore, they discharged themselves without just cause, and they lost any lien which they had as attorneys. (Matter of H—, 93 N. Y. 381; Halbert v. Gibbs, 16 App. Div. 126; Tuck v. Manning, 53 Hun, 455; McKay v. Morris, 35 Misc. Rep. 571.) Counsel for Moss & Feiner, as I understand his argument, contends that, notwithstanding the fact that the attorneys refused without cause to longer represent their client in the Zimmerman action, while this might justify the order of substitution, it did not deprive them of their lien upon the papers in that action which are necessary to the proper conduct of the appeal therein. In such case the order of substitution would be fruitless without the papers. It cannot be that an attorney may abandon the cause of his client in the middle of the trial or on appeal when the immediate pres-. ence or action of an attorney is required, and thereby merely forfeit his right to be the attorney of record and to any lien upon the cause of action or counterclaim or final judgment, but retain a lien upon the papers which the client must discharge by paying any claim he may see fit to make for services in that or in any other actions or matter, or forthwith pay the amount which the court on a summary application may determine to be the value of his services. If such were the rule, the substitution would not accomplish the purpose for which it was intended. If the substitution occurred upon the trial of an action, it is manifest that it would be necessary for the substituted attorney to have all the papers in the action, but under the rule contended for by counsel for Moss & Feiner, he could not obtain them unless his client then and there yielded to the demand made upon him or to any order summarily made and was able to comply therewith. An effort is made to distinguish the cases herein cited. They are in some respects distinguishable upon the facts and in the manner in which the question arose, but as we read them, they are authority for the proposition for which we are citing them. There are, of course, two classes of attorney's liens. One is a general common-law lien on papers, including money, which has come to be known as a retaining or possessory lien, and the other is a limited statutory lien upon the cause of action or

First Department, March, 1910.

[Vol. 137. counterclaim, which has come to be known as a charging lien. (Goodrich v. Mc Donald, 112 N. Y. 157, 162; Matter of Lorillard v. Barnard, 42 Hun, 545; Matter of Wilson & Grieg, 2 Civ. Proc. Rep. 343; Matter of Hollins, 197 N. Y. 361; Code Civ. Proc. § 66; now Judiciary Law [Consol. Laws, chap. 30; Laws of 1909, chap. 35] § 475.) In Matter of H- Tuck v. Manning and McKay v. Morris (supra), the questions arose over the assertion of the statutory or charging liens only; but the opinions do not indicate that any distinction was recognized between the two classes of liens with respect to a forfeiture of the right to a lien. If the right to a statutory lien may be declared forfeited on account of the refusal of the attorney without just cause to proceed so that he loses all right to a lien for the services rendered which are accepted by the client and substituted attorney and contribute toward the final recovery, it would seem on principle that he should lose his common-law lien on the papers in the action by unreasonably refusing to continue the service for which he was retained. Such was the case of Halbert v. Gibbs (supra), and although it does not appear that the question as to whether the order of substitution in that action required the delivery of the papers, that would seem to be the fair inference, since otherwise a discussion of the question of the lien would not likely have been indulged in by the court, and, moreover, the appeal was from an order denying a motion for substitution and for delivery of the papers, and the entire order which referred the question as to value of services was reversed and motion for substitution granted, which, I think, granted the motion as made.

[ocr errors]

It is further contended in behalf of Moss & Feiner that even though their client were at liberty to accept their letter of May 31, 1907, as a discharge of themselves as attorneys, still he did not do so, and he waived his right in that regard by further negotiations with them, and that before he finally employed other attorneys they withdrew from the position which they took in that letter and refused to consent to a substitution. On the reference Rieser was not interrogated with respect to any further conversations or correspondence between him and Moss & Feiner, but it appears from his moving affidavit that, acting upon their letter of May 31, 1907, he called upon Messrs. Douglas & Armitage and employed them to protect his interests and to be substituted in both litigations referred

« AnteriorContinuar »