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Martucci v. Brooklyn Children's Aid Society & Wave Crest Convalescent Home

259 A.D. 1003 Court N.Y. App. Div. Decision date 1940-06-19 English

Decision Majority · Dissent — Dore, J.

Contents

Majority

p. 1003
Robert Martucci, an Infant, by Joseph Martucci, His Guardian ad Litem, and Joseph Martucci, Appellants, v. Brooklyn Children’s Aid Society and Wave Crest Convalescent Home, Defendants. Desmond T. Barry, Respondent.

No opinion.

Present — Martin, P. J„ O’Malley, Townley, Glennon and Dore, JJ.; Martin, P. J., and Dore, J., dissent; dissenting opinion by Dore, J.

(dissenting). The order appealed from granted substitution of attorneys and fixed the lien of the attorney who had been discharged at twelve and a half per cent of the proceeds of any judgment or settlement but in no event less than $400. By not appealing the attorney has consented to the payment of his fee out of the proceeds of any judgment or settlement. It was, however, error to fix the amount of the lien on a percentage based upon elements involving the services of the attorney substituted, for the value of one attorney’s services

Dissent

p. 1004
may not be measured by the results obtained by another, and the lien should be ascertained on quantum meruit for the volume, quality and result of the professional services already performed. (Matter of Tillman, 259 N. Y. 133 , 135.)

On the facts disclosed a fair and reasonable charging lien on such basis would be $300 together with thirty dollars disbursements, to attach to and be paid out of the proceeds of any judgment, final order or settlement. Therefore, I dissent from the affirmance of the order and vote to modify as herein indicated.

Martin, P. J., concurs with Dore, J.

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