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Restivo v. Bradley Contracting Co.

166 A.D. 809 Court Second Department, Decision date 1915-03-26 English

Delivered by *810 JENKS, P. J.:

Contents

Majority

p. 809
Maddalena Restivo, as Administratrix, etc., of Salvatore Restivo, Deceased, Appellant, v. Bradley Contracting Company, Defendant. Francis L. Corrao, Respondent.
Second Department,
March 26, 1915.

Headnote

Attorney and client — substitution of attorney — lien of former attorney fixed at one-third of recovery.
An order of substitution determining and fixing the amount of the lien of plaintiff’s former attorney at one-third of any sum recovered by the plaintiff, should be affirmed, where it appears that the Special Term had before it a statement of the services rendered which was neither challenged nor contradicted, and the plaintiff asked that the compensation should be made contingent.
Appeal by the plaintiff, Maddalena Restivo, as administratrix, etc., from so much of an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 7th day of January, 1915, as determines and fixes the amount of the lien of plaintiff’s former attorney, respondent herein, at one-third of any sum recovered by the plaintiff in this action.
Isidore Neustaedter, for the appellant.
Francis L. Corrao, respondent, in person.

The plaintiff moved for a substitution of her attorney, and the Special Term denied the motion. She appealed and we reversed the order because it was against her absolute right, and remitted the matter to the Special Term to ascertain the amount of the attorney’s lien and to provide for its protection. ( 166 App. Div. 905 .) Thereupon the Special Term granted the present order for substitution, ordered that the lien of the former attorney should remain in full force and effect, and determined that the amount thereof should be one-third of any sum that should be secured in this action by suit, settlement or otherwise, and the plaintiff appeals. Her grievance is the amount of the compensation. The Special Term had before it a statement of the services rendered, which was- neither challenged nor contradicted, and the plaintiff prayed that the compensation should be made contingent. The amount determined was not unconscionable in itself, for if it had been one-half instead of one-third of any recovery it would not have been so. (Morehouse v. Brooklyn Heights R. R. Co., 185 N. Y. 520 ; Ransom v. Cutting, 188 id. 447.) While the court was not bound, in determination of the amount, by the terms of the said agreement, it was not required to name a smaller amount because the continuance of the attorney had been cut off by the wish, whim or caprice of the plaintiff. (Jeffards v. Brooklyn Heights R. R. Co., 49 App. Div. 45 .) In Andrewes v. Haas (160 id. 421; affd., 214 N. Y. 255 ) we said: “ If the client choose continuance and press on to success, the compensation in the first instance is determined by the agreed contingent fee, and this may be so even though meanwhile the attorney has been discharged.” Upon this record we cannot say that any injustice has been done,

The order is affirmed, with ten costs and disbursements.

Burr, Carr, Rich and Putnam, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.

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