Fellner v. Zuckerberg — 202 Misc. 611

Majority

p. 611

Leatrice Fellner, Respondent, v. William Zuckerberg, Appellant.

Supreme Court, Appellate Term, First Department,

June 19, 1952.

Louis Drell for appellant.

Leatrice Fellner, respondent in person.

The defendant’s employment having been terminated without fault on his part, whether the plaintiff is entitled to the return of any part of the fee paid for the conduct of the action to its conclusion, depends on the intention of the parties when the payment was made, to be determined from the receipt and all the surrounding circumstances. These issues should be explored fully.

The judgment should be reversed and new trial ordered, with $30 costs to appellant to abide the event.

Hoestadter and Schreiber, JJ., concur in Per Curiam memorandum ; Hecht, J., dissents and votes for reversal of the judgment and dismissal of the complaint.

Judgment reversed, etc.