Bryon v. Durrie — 6 Abb. N. Cas. 135

Majority

p. 135

BRYON v. DURRIE.

N. Y. Supreme Court, First Department;

General Term, October, 1878.

Headnote

Discontinuance of Actions.—Extba Allowances undeb sections 308, 309 of Code of Pbocedube.—Attobney’s Fees. —Appeal.

The court is authorized to prescribe the terms upon which an action shall be discontinued, where the compensation of an attorney is involved.

The imposing of terms upon which an action may be discontinued, and the relation of the attorney to the controversy terminate, involves the exercise of discretion, and should not be reversed by the appellate court, unless the facts show a clear abuse of such discretion.

To entitle a party to the full amount of $60, allowed by section 308 of the Code of Procedure, it is necessary that a judgment should be rendered in the action.^[1]

If an action is discontinued before the entry of judgment, only $30 can be claimed under section 308 of the Code of Procedure.

The fact that parties to a suit have interposed to prevent an action from proceeding to judgment under the direction of their attorney, will be enough to justify the court in holding that so far as the rights of the attorney are concerned, there has been a settlement thereof.

Hence a client who after agreeing to compensate his attorney by a percentage on the amount collected, and taxable costs, &c., settles the suit without collection, may be required, as a condition of discontinuance, to pay a compensation in addition to costs, &c.^[2]

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Whether an action should be regarded as difficult and extraordinary within the meaning of the Code of Procedure, rests substantially in the judgment and discretion of the judge to whom the application for an extra allowance is made, and the appellate court will rarely interfere with his decision.

Appeals from orders.

Lavinia B. Bryon, claiming to be entitled to about one-eighth part of certain real and personal estate under the last will and testament of Richard P. Dunn, her grandfather, applied to William H. Sloan, Esq., an attorney and counselor at law, to institute proceedings to ascertain and recover her interest in said estate, and agreed to furnish sufficient money to bear the expenses of the legal proceedings, and that he should be well paid for his services, and repaid all advances he might make. Some timé after suits had been commenced she executed to him the following instrument, duly acknowledged:

[Titles of the two causes.]

“ I hereby agree to pay my attorney, William H. Sloan, for the prosecution of the two above entitled actions in this court, the sum of ten per cent, on the amount collected by him, besides costs and allowances.

New York, April 8, 1878.

LAVINIA B. BRYON.”

In presence of ) L. M. Dos CHER. j

One of the suits above referred to was by the said Lavinia B. Bryon against Horace Durrie, executor, Horace Durrie Dunn, Sarah Antoinette Dunn, his wife, and others, to obtain judicial construction of said will and to compel a division of personal estate amounting to $22,812.50.

The other suit was by her and David Bryon, her husband, against the same parties, for the partition of real estate in the city of New York, valued at

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$22,000. A proceeding was also instituted before the surrogate.

After the above proceedings had been commenced, Horace Durrie Dunn and Sarah Antoinette Dunn, two of the defendants in the above-mentioned suits, began an action against the plaintiffs therein for the partition of the same real estate.

A few weeks thereafter the said Lavinia B. Bryon, having been persuaded by her relatives to abandon her said suits, desired her said attorney, William H. Sloan, to consent to a discontinuance thereof upon payment to him of his taxable costs, which he having refused to do, orders were obtained to show cause why the actions should not be discontinued.

The affidavits on the motions disclosed the fact that Mr. Sloan devoted much time to the investigation of the plaintiff’s claim, and in prosecuting the said actions, as he stated, more than a month on one occasion.

It was ordered that the first suit, that for the construction of the will, &c., should be discontinued on payment to Mr. Sloan of the sum of $500, together with his costs, to be taxed by the clerk of the court, and that unless said sum and costs as taxed were paid within twenty days after the service of a copy of the order, the motion to discontinue should be denied, with $10 costs.

In the second case, being for partition of realty, it was ordered that the action commenced by Horace Durrie Dunn and Sarah Antoinette Dunn against Lavinia B. Bryon and her husband, should be stayed until the payment to Mr. Sloan of $1,060 (in which sum was included $500 under the agreement between plaintiff and her attorney for ten per cent., and also $60 under section 308 of the Code of Procedure, and $500 under section 309 of the same), together with the other 'taxable costs in the action to be taxed by the clerk of

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the court. ' That if said sums and costs were paid, the action was to be discontinued.

From these orders the defendants, Horace Durrie, executor, and Lavinia D. Lambert, and the plaintiffs, Lavinia B. Bryon and her husband, appealed.

J. W. Little, for appellant Horace Durrie, executor.

N. Reeve, for appellant Lavinia D. Lambert.

John A. Osborn, for appellant, L. B. Bryon and her husband.

Stephen B. Bragúe, for William H. Sloan.

[After stating the facts.]—It is obvious to persons who are familiar with such proceedings, that if they are intelligently conducted, much time and attention are required even when free from extraordinary complication. The investigation in regard to title and incumbrances, adjusting the interests of the various parties, which are necessarily involved in an ordinary partition, require care and consume time. . These services must be rendered at the commencement of the action, and in the majority of cases constitute the greater proportion of the labor involved in conducting such an action.

We can readily perceive that the proceedings in these actions must have consumed considerable time in making the necessary examinations preparatory to commencing the actions. The amount involved appears to have been about $45,000, and the matter was complicated. When the actions were commenced, the parties were evidently hostile, but subsequently established amicable relations and then became desirous to discontinue the proceedings which were commenced by Mr. Sloan, upon the most reasonable terms for themselves, offering to pay him simply taxable costs. The court has interposed its authority to prevent the parties from depriving the attorney of the compensation to which he is reasonably entitled for the services

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which he has rendered at the instance of the plaintiff and for which she has agreed to pay him. The court is authorized to prescribe the terms upon which an action shall be discontinued when the compensation of the attorney is involved, as in these cases. After a full hearing the court, at special term, prescribed the terms upon which the action might be discontinued, and the relation of the attorney to the controversy terminate. This decision involved the exercise of discretion and therefore should not be reversed by this court, unless the facts show a clear abuse of such discretion.

The question here presented is not whether as an original application this court would in the exercise of its discretion prescribe the same terms. We do not discover that the court adopted an erroneous basis in adjusting the allowances, except in one particular, which is comparatively trifling in amount, nevertheless the party is entitled to have it corrected, as the objection has been' raised. The error was in allowing full percentage under section 308 of the code instead of $30, one-half percentage, as no judgment was rendered in the action, which, according to our understanding of that provision of the code, is required to entitle a party to the full amount, not exceeding $60. The allowance therefore could only be made under the last clause of the section, as upon a settlement of the action, and only for one-half the percentage, which in this case amounts to $30.

There has not been strictly a settlement so far as the facts disclose, but we conclude that sufficient appears to justify the court in holding that, so far as the rights of the attorney are concerned, that which has occurred is equivalent thereto, as the parties have interposed to prevent the action from proceeding to judgment, under the direction of Mr. Sloan, as attorney. This question only becomes material, from the fact that the court adopted this basis in deter

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mining the amount of the attorney’s compensation, and made a specific allowance under the section of the code, and consequently the party is entitled to have it correctly interpreted. It is probable that the attention of the learned judge was not directed to the particular reading of the section.

The court was justified in holding that the actions were difficult and extraordinary within the meaning of the code, as the same has been repeatedly construed. Whether an action should be so regarded, rests substantially in the judgment and discretion of the judge to whom the application is made, and the determination of the question usually involves so many considerations which are addressed to the discretion of the judge, that the appellate court rarely interferes. The practice in regard to reviewing ’ orders involving the exercise of discretion is very intelligently stated by Mr. Waite in his valuable work on Practice, vol. 1, page 465. Indeed, in actions for the partition of real property, the code expressly authorizes such allowance (§ 309 of Code of Procedure).

The amount allowed seems quite considerable, but it is within the prescribed limits, and the facts indicate a corresponding amount of work on the part of the attorney, who received from his client a written contract by which, if the actions had been continued by him to the conclusion which was contemplated when he was retained, probably a much larger compensation would have been received by him. There seems to have been no cause for complaint against the attorney, nor does it appear that he was wanting in ability, industry, or integrity in conducting the business.

We conclnde that $30 should be deducted, and otherwise the orders appealed from should be affirmed. Ho costs of the appeal should be allowed to either party.