Spencer v. Busch — 50 Misc. 284

Majority

p. 284

Selden P. Spencer, Appellant, v. Clarence M. Busch, Respondent.

(Supreme Court, Appellate Term,

April, 1906.)

Headnote

Attorney and client—The relation with the client — Compensation — Services rendered in foreign State.

Evidence — Presumptions — Foreign laws — Common law of other States.

In the absence of proof of the law of Missouri as to the right of an attorney to recover for professional services, it will be presumed to be the same as the common law of this State.

An attorney and eounselor-at-law practicing in St. Louis, Mo., may maintain an action in this State to recover for services rendered in the State of Missouri.

Appeal by the plaintiff from a judgment in favor of the defendant, rendered in the Municipal Court of the city of blew York, twelfth district, borough of Manhattan.

Holden & Rogers (Clarence W. W. Rogers, of counsel), for appellant.

W. Russell Osborn, for respondent..

The plaintiff, a St. Louis lawyer, sues for the value of professional services rendered to defendant in the xState of Missouri. At the close of plaintiff’s case, after the employment, rendition of services and value had been proven, the defendant moved to dismiss upon the ground that it had not been shown that the law of the State of Missouri permitted an action to be maintained by an attorney against his client; that the courts of this State, in the absence of proof of the law of the State of Missouri, will presume that the common law is in force in that State and that, at common law, an attorney could not recover for professional services. The court adopted this view and dismissed the complaint. It is made clear that what the defendant meant by reference

p. 285

to the common law was the common law of England, as contradistinguished from the common law in this State. The proposition urged upon the court by the defendant was wholly erroneous and based upon an inadvertent dictum contained in a decision announced from the bench and quite unnecessary to the disposition of the case under consideration. Williams v. Dodge, 8 Misc. Rep. 317 . The rule as to presumptions concerning the law of foreign States, which has long obtained in this State, is that, in the absence of proof as to the actual law of the foreign State, it will be presumed to be the same as the common law of the State in which the action is pending. Cheney v. Arnold, 15 N. Y. 345 . The rule which has for centuries obtained in England, that advocates and barristers might not, by action, compel payment for their services, is peculiar to that country, and has never obtained in this State (Stevens & Cagger v. Adams, 23 Wend. 57 , affd. 26 id. 451), and the common law of this State is that a lawyer may recover by action just compensation for his services, whether those services were such as in England would be performed by an attorney or solicitor, or those which would be rendered by a barrister or advocate. It is this common law that is to be presumed to obtain in Missouri, in the absence of evidence to the contrary. Nor was the defendant’s counsel accurate in his statement as to the common law of England. As he made it, his statement was that, “ at common law an attorney could not recover for professional services.” This is not and never has been the common law, either in England or in this State. In England, as is known to every lawyer, legal practitioners are divided into two classes, denominated solicitors or attorneys, and barristers ; and their respective duties and functions are well defined and understood. It is only to the barristers that the rule cited by the defendant applies or ever has applied. Attorneys or solicitors have always been permitted to recover, at law, for their services. Reg. v. Dountre, L. R. (9 App.) 752. An examination of the plaintiff’s bill of particulars shows that the services for which he sues are those which, in a jurisdiction wherein the English classification of lawyers obtains, would properly be performed by an attorney, and

p. 286

for which compensation would he recoverable at law. The ¡ plaintiff describes himself as an attorney and counselor-at-law, indicating that in Missouri, as in this State, the distinction between an attorney and counselor no longer obtains. As an attorney he certainly may sue under the j: common law, both of this State and of England, for services > performed in .that capacity.

The judgment must be reversed and a*new trial granted, with costs to appellant to abide the event.

Tbit ax and Bischoff, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.

Cases cited

Williams v. Dodge 8 Misc. Rep. 317 N.Y.C.P. 1894-05-17 p. 285
Cheney v. Arnold 15 N. Y. 345 N.Y. p. 285