p. 390Mary H. Myer, Individually and as Trustee, etc., of Clark L. Sharpsteen, Deceased, and as General Guardian of Mary Helena Sharpsteen, an Infant, Appellant, v. Leon Abbett, Individually and as Survivor of the Partnership of Abbett & Fuller, and Others, Defendants. Hascall, Clarke & Vanderpoel, Claimants, Respondents.Headnote
General Rule No. 27—it does not permit an order fixing the value of attorneys’ services to a party to an action, to be docketed as a judgment.Rule 27 of the General Rules of Practice prescribing, among other things, that ‘ ‘ Any order or judgment directing the payment of money, or affecting the title to property, if founded on petition,, where no complaint is filed, may, at the request of any party interested, be enrolled and docketed, as other judgments,” is intended to cover that class of applications which can be made only by petition and has no application to an order, made upon the decision of a contested motion, by which the: claims of attorneys for services rendered to a party to the action are adjusted; and it is consequently improper for an order in the latter case to direct that judgment be docketed against the party liable, in favor of the claimants, for the amount of their services as fixed.
Appeal by the plaintiff, Mary H, Myer, individually and as trustee, etc., of Clark L. Sharpsteen, deceased, and as general guardian of Mary Helena Sharpsteen, an infant, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 26th day of March, 1897, overruling exceptions theretofore filed to the report of a referee and confirming said report, and also from a judgment entered upon said order in the office of the clerk of the county of Hew York on the 26th day of March, 1897."
Edward W. S. Johnston, for the, appellant.
John H. Judge for the respondents.
The appeal from the order confirming the report of the referee brings up for consideration, in the first place, the finding made as to the value of the services rendered to the plaintiff by the claimants, the attorneys who represented her immediately before the substitution of her present attorneys. On examining the record to ascer
p. 391tain what services were performed, and the value thereof, we find that they extended over a period of something more than two years; but they were not of such a character as involved any special skill or unusual labor, and assuming, as was undoubtedly the fact, that they performed all the services precisely as they state, it is evident that many of the items contained in the account are ordinary routine services, for which no specific charge was or could be made. The whole bill is for services rendered in one action. When the claimants, whose bill is now under examination, came into the case, it was at issue, and had been on trial for a long time before a
referee. Taking into consideration the statement of items of their bill, and bearing in mind that there is but one subject of employment, and that their services were in connection with a case taken up by them before a referee, and the trial of which is still unfinished, we think there has been too liberal a valuation placed upon the services of these attorneys. There was conflicting evidence of expert witnesses as to the value of the services, but we are of the opinion that the estimates of value made by the two blew York attorneys, testifying on behalf of the plaintiff, was the more reasonable and proper one under all the circumstances of the case. The order, therefore, with reference to this matter should be modified by reducing the amount of the value of the services to the sum of $2,000, which is the precise value put upon them by the claimants before any litigation was had. Seven hundred and sixty-five dollars having been paid on account, the balance of $1,235 remains, to which should be added $44.91 disbursements, making a total now due and unpaid of $1,279.91.
There is a provision contained in the order that judgment be docketed against the plaintiff in favor of the claimants for the amount of their services as fixed, and this appeal involves the propriety of that provision. It is claimed that under rule 27 of the General Rules of Practice such a provision was authorized. The rule referred to has no application to a proceeding of this character, and was not intended to accomplish such a purpose. It refers only to orders granted on petitions where no complaint is filed, and was intended to cover that class of applications that could be made only on petition, and does.not relate in any way to orders entered upon the decision of ordinary motions such as this is. The provision relating to the entry of judgment must be expunged. .
p. 392The order appealed from must be modified in accordance with the foregoing views, and as modified affirmed, without costs of this appeal to either party.
Van Brunt, P. J., Rumsey, Ingraham and Parker, JJ., concurred.
Order modified as directed in opinion, and as. modified affirmed, without costs.