Disborough v. Herdman

Headnote

This was a motion for an attachment against Horace P. Herdman, an attorney, for the alleged non-payment, of moneys collected by him for plaintiff’s intestate, Sarah Dis-borough. It was referred" to- a referee to take testimony and report with his opinion thereon; the referee reported a bah anee due Herdman for professional services, over and above the moneys retained, of seventy-six dollars and eighty-two

cents, and gave Ms opinion that Herdman had a lien upon the moneys in his hands, and that the administrator was not entitled to an attachment. It appeared that Herdman as attorney for plaintiff’s intestate commenced an action in her favor against Paul Rapelyea, under an agreement with her that he was to have for his services ten per cent, and his expenses upon all sums of money collected or received. He settled the suit, subsequently collecting or receiving $8,436.37, and also recovering a bond for $1,800, executed by Sarah Disborough, and another as executrix, etc., of her deceased husband, and wMch was a claim against his estate. Herd-man claimed, and was allowed by the report of the referee, ten per cent on the amount of the bond. Upon motion to confirm the report the Special Term confirmed the whole thereof, save the allowance of the ten per cent upon the bond, and ordered the payment by Herdman of $103.82 in thirty days, and in case of default that an attachment issue. Held, that appellant was entitled to the ten per cent claimed upon the bond; but inasmuch as it appeared that in the compromise the appellant secured to himself a counsel fee of $400, wMch amount more than indemnified him for his commission on the'bond and expenses, and for which he was bound to account, the order was affirmed. (Church, Oh. J., Allen and Andrews, JJ., dissenting).