Holmes v. Evans — 13 N.Y.S. 614

Majority

p. 614

Holmes et al. v. Evans et al.

(Superior Court of New York City, General Term.

March 2, 1891.)

Headnote

Construction of Contract.

Plaintiffs, being employed by defendants on stipulated terms to litigate certain claims, effected a settlement, which defendants refused to carry out. Plaintiffs gave a blank co'nsent for a substitution of attorneys, stipulating that they

p. 615

should receive the agreed compensation if the claims were settled on the same terms. Held, that, on a finding by a referee that the terms were not substantially the same, plaintiffs could not recover.

Appeal from judgment on report of referee.

Artemas H. Holmes and another sued George S. Evans and another, to recover shares of stock claimed to be due from defendants for services as attorneys. Judgment entered upon the report of a referee. Plaintiffs appeal.

Argued before Sedgwick, C. J., and Trttax and Dugro, JJ.

William, JJ. Hornblower, for appellants. John C. Tomlinson, for respondents.

The plaintiffs were employed as attorneys at law by the defendants to litigate certain claims or to make a settlement of them. They, the plaintiffs, by negotiation, were able to make a settlement. ' This, however, was not satisfactory to the defendants. Thereupon the plaintiffs gave to defendants a blank consent to substitute attorneys, and wrote a letter consenting that the defendants should proceed to make a settlement, and adding: “In the event that you settle the controversies upon substantially the same terms as you reject, we shall be entitled to the compensation provided for the agreement. ” The plaintiffs, therefore, are not entitled to recover, unless the settlement afterwards made contained substantially the same terms as did the settlement which the plaintiff could have made. The referee finds that the terms were not substantially the same. This is supported by the'tenor of the respective settlements. Judgment affirmed, with costs. All concur.