Crosby v. Kropf — 33 A.D. 446

Majority

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William B. Crosby, Respondent, v. Georgeanna Kropf, Appellant, Impleaded with Others.

Headnote

Pleading—action for services rendered—counterclaims for services — bill of particulars — demurrable reply.

In an action to recover the value of services rendered by an attorney at law, the defendant interposed certain counterclaims based upon alleged services of a third party rendered to the plaintiff, and by the former assigned to the defendant,, to which the plaintiff replied, asserting as a defense to one of the counterclaims that no bill was ever rendered by said third person to the plaintiff for the alleged services, and that no account was stated therefor; that no contract or ■agreement for such services was ever made; that if any services were performed they were gratuitous; that no notice of any assignment of the claim of the third party therefor was ever given, and that the- plaintiff had no knowledge or notice of the alleged transfer or assignment until after the commencement of the action, when an answer Was served containing the counterclaim.

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A bill of particulars of the counterclaim contained in the-original answer was served, but no bill of particulars of the counterclaim contained- in an amended answer subsequently served was averred or referred to, and the reply set up the Statute of Limitations as against certain items contained in a bill of particulars, and that those items were barred by the statute.

In reply to another counterclaim for services rendered by the third party for a hospital, at the request of the plaintiff and between certain dates, the reply referred to them as items in a bill of particulars, and then stated that those items of services mentioned in the bill of particulars were rendered, if at all, by the third person, gratuitously, and that, as to one of those items, such third person either rendered the services gratuitously or on the special-retainer of the hospital, and then set up the Statute of Limitations as to items contained in the bill of particulars.

The plaintiff set up no defense existing against the assignor of the claim before notice to him of the assignment thereof.

Held, that the reply was demurrable;

That the allegation as to the gratuitous nature of the services rendered by the third party at the plaintiff’s request to the hospital, did not involve the legal conclusion that the services rendered by such third party to the plaintiff were gratuitous;

That the allegation, that no notice of the assignment of the claim by the third party was given to the plaintiff, was immaterial, and the services of the third party being, apparently, admitted, there was merely a denial of an agreement, • express or implied, as to compensation, which would not preclude the defendant recovering the reasonable value of the services, and that, as to the allegation relating to the bill of particulars, and not to the answer, the demurrer was clearly not frivolous on its face;

That the fact that no account or bill was ever rendered and that the third -party was guilty of laches was not of any consequence.

Appeal by the defendant, Georgeanna Kropf, from an order of the Supreme Court, made at the Yew York Special Term and entered in the office of the clerk of the county of Yew York on the 6th day of July, 1898, overruling as frivolous the demurrer interposed by said defendant to the plaintiff’s reply.

Henry Hoyt, for the appellant.

Edward G. Black, for the respondent.

This is an appeal from an order overruling a demurrer interposed by the defendant Georgeanna Kropf to a reply of the plaintiff to counterclaims set up in the answer of such defendant. Those counterclaims were upon alleged demands of one Henry Kropf (assigned to the defendant Georgeanna Kropf), arising directly against plain

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tiff, or for which he had become liable. The action was brought to recover of the defendant Georgeanna Kropf the value of services of certain lawyers employed by her in various legal proceedings, the plaintiff alleging that the title to the claims is vested in him. The' defendant Georgeanna Kropf’s counterclaims are based upon alleged services of Henry Kropf rendered to the plaintiff, or to the lawyers whose claims- are represented, in this action by the plaintiff.. The plaintiff proceeded to reply thereto, and in the 5th paragraph of such reply asserts as a defense to one. of. the counterclaims that no, bill was ever rendered by Henry Kropf to the firm of Crosby '& Powell, one of the firm of lawyers above referred to, for any part of the services claimed to have been performed by him; that no account was stated therefor; that no contract or agreement for such services was ever made; that if any services were performed, they were gratuitous; that no notice of any assignment of a claim of Henry Kropf against the'firm of Crosby & Powell was ever given; that the plaintiff had no knowledge or notice of the alleged transfer or assignment until after the commencement of this action, when an answer was served containing the counterclaim. A bill of particulars was also served in this action. The reply also sets up the ■ Statute of Limitations as against certain items contained in a bill of particulars, and that those items are barred by the statute. Another counterclaim of the defendant is for services alleged to-have been rendered by Henry Kropf to the Manhattan Eye and. Ear Hospital, at the request of the plaintiff and between certain, dates, but the reply refers to those services as items in a bill of' particulars, and then states that those items of service mentioned, in the bill of particulars were rendered, if at all, by Kropf gratuitously, and that as to .-one of those items, namely, the 21st, he. either rendered the service gratuitously or on a special retainer of' the hospital, and then sets up the Statute of Limitations as to items; contained in the bill of particulars.

The demurrer is anything but frivolous. The allegation of the; notice of assignment contained in the 5th paragraph of the reply might well be held to be. entirely immaterial, as the plaintiff sets up-no defense; existing against the assignor of the claim before notice.. In the same paragraph (5th) the rendition of services by Henry Kropf seems to be admitted. There is merely a denial of an agree

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ment, express or implied, as to compensation. There may have been no express or implied agreement as to amount of compensation, but the defendant only seeks to recover the reasonable value of the services. It is difficult to see thus far how a bare inspection of the allegations of the answer respecting this counterclaim shows it to be frivolous. As to the rest of the oth paragraph of the reply it merely relates to a bill of particulars and not to an answer, and a demurrer to that portion of the 5th paragraph is certainly not on its face a frivolous pleading.

The substance of the 9th paragraph of the reply is that the services of Henry Kropf for the Manhattan Eye and Ear Hospital were gratuitously rendered to the plaintiff or his firm because he and they acted for the hospital without compensation, and that as to a particular item of the bill of particulars, the service therein mentioned was rendered upon a special employment of the hospital, or was gratuitously performed by Henry Kropf. That the services were gratuitously rendered to the hospital does not involve the legal conclusion that Henry Kropf’s services to the plaintiff or his assignors or associates ivere gratuitous.

As to the 21st item of the bill of particulars, the reply does say that Henry Kropf himself rendered gratuitous seiwice, but that is again a reference to the bill of particulars and not to the answer. That no account or bill was ever rendered and that Henry Kropf was guilty of laches does not seem to be of any consequence. The amended answer was served on the 21st of January, 1898; the original answer containing the counterclaims was sworn to in October, 1897; the bill of particulars of this counterclaim was served November 24, 1897, and that appears to be a bill of particulars of the counterclaim contained in the original answer ; no bill of particulars of the counterclaim in the answer of January, 1898, seems to be averred or referred to, and the original answer is not among the papers.

. The order appealed from must be reversed, with costs, and the motion denied, with ten dollars costs.

Van Brunt, P. J., Barrett, Rumsey and O’Brien, JJ., concurred.

Order reversed, with costs, and motion denied, with ten dollars costs.