Myers v. Brooklyn Heights Railroad

Headnote

Myers v. Brooklyn Heights R. R. Co., 183 App. Div. 939 , affirmed.

Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered April 17, 1918, which reversed an order of Special Term denying a motion to compel the appellants herein, attorneys, to turn over to the petitioner the proceeds of a judgment collected by them less one-third thereof and less the costs in accordance with the contract of retainer. The appellants, as attorneys, brought two actions against defendant, one on behalf of the plaintiff’s infant son to recover for personal injuries and the other on behalf of plaintiff to recover for the loss of his son’s services. Damages were recovered in both actions. The defendant thereafter paid the amount of the plaintiff’s judgment to the appellants as plaintiff’s attorneys. , The infant’s judgment has not yet been paid. After the amount of the plaintiff’s judgment had been received by the appellants they claimed the right to charge their services in both actions against the plaintiff and to deduct from plaintiff’s recovery one-third of the amounts' of both judgments under, the following contract: “I, Jacob Myers, do hereby retain the firm of O’Brien, Malevinsky & Driscoll as my attorneys to take all steps, proceedings and actions necessary or which they may deem proper to collect for me and for my infant son, Jacob Myers, all damages, claims and judgments which may be obtained by me either on my own behalf or on behalf of my said

infant son, as his guardian, by reason of his having been run over in Brooklyn by a street car on the 10th day of March, 1915, and I hereby stipulate and agree that said attorneys may retain one-third of all sums of money so collected as their fees, together with such costs as may be awarded upon the trial.” The plaintiff contended that the appellants are not entitled to deduct from his own judgment more than one-third of the amount thereof, and that as to their compensation for services in his son’s action they should follow the practice expressly provided by section 474 of the Judiciary Law, as amended by chapter 229 of the Laws of 1912.