Schleimer v. McMillan — 79 Misc. 2d 829

Majority

p. 829

Irene Schleimer, Respondent, v. Girtis McMillan, Defendant, and Thurmond Sellers, Appellant.

Supreme Court, Appellate Term, Second Department,

February 27, 1974.

Kadane é Spies (Harvey W. Spies of counsel), for appellant. Irving O. Schleimer for respondent.

Memorandum. Judgment unanimously modified by reducing the amount of plaintiff’s recovery by the sum of $202.36, with appropriate interest and costs on the amount due as reduced; as so modified, judgment affirmed, without costs.

In this suit by plaintiff to recover on a retail installment contract, she is not entitled to attorney’s fees on the buyer’s default where the contract states: 1 ‘ Buyer agrees to pay an attorney’s fee of fifteen (15) percent of the amount due and payable under this contract when same is referred to an attorney, not a salaried employee of the holder, for collection ”.

In the case at bar, the attorney was plaintiff’s husband who was involved in the matter from the very outset, commencing with his credit check of the defendant. We feel that this contract was therefore never “ referred to an attorney” for collection, since he was an integral part of the entire transaction.

Concur: Hogan, P. J., Glickman and McCullough, JJ.