Farago v. New York Rys. Co. — 147 N.Y.S. 303

Majority

p. 303

FARAGO v. NEW YORK RYS. CO.

(No. 5728.)

(Supreme Court, Appellate Division, First Department.

May 1, 1914.)

Headnote

Attorney and Client (§' 190^[1] )—Compensation—Discontinuance op Action.

Where an attorney was entitled, under his contract with his client, to one-third of the amount received by the client on a settlement of his action or one-half on a judgment, and the case was settled, defendant’s motion to discontinue could only be granted on the payment to the attorney of one-third of the settlement.

[Ed. Note.—For other cases, see Attorney and Client, Cent Dig. §§ 412-417; Dec. Dig. § 190.*]

Appeal from Special Term, New York County.

Action by Ladislaus Farago against the New York Railways Company. From an order denying a motion to confirm the report of a referee, to discontinue the action, and to cancel the attorney’s lien, defendant appeals.

Modified and affirmed.

Argued before INGRAHAM, P. J., and CLARKE, SCOTT, DOWLING, and HOTCHKISS, JJ.

James L. Quackenbush, of New York City (Bayard H. Ames, of New York City, of counsel, and Johú Montgomery, of New York City, on the brief), for appellant.

Roger Foster, of New York City, for respondent Sigmund Rotter.

Wre are satisfied that the learned Special Term was right in finding that the attorney had been duly retained. We see no reason why an end should not be put to this controversy. The agreement was that the attorney should receive 33% per cent, upon a settlement and 50 per cent, upon a judgment. The case was settled for $870.

The order appealed from should therefore be modified by providing that the defendant’s motion to discontinue be granted upon the payment to plaintiff’s attorney Sigmund Rotter of $290, one-third of the amount of settlement, $10 costs of the motion below, $10 costs on this appeal, and the respondent’s disbursements, and, as so modified, affirmed.