Schenck v. Marx — 5 N.Y.S. 309

Majority

p. 309

Schenck v. Marx.

(Supreme Court, General Term, Second Department.

May 18, 1889.)

Headnote

Appeal—New Trial.

' Though errors have been committed at the trial, and the verdict is too large, yet, where a new trial will necessarily result in a verdict for a certain amount, the case can properly he disposed of by reducing the judgment to that amount.

Appeal from circuit court, Queens county.

This was an action by John Schenck against Mathew Marx for money had .■and received. Defendant, an attorney, undertook to prosecute an action for damages on behalf of plaintiff, under an agreement by which defendant was to retain, for his services, 35 per cent, of the amount recovered. Subsequently one Charles Benner was employed as counsel, and the following agreement in regard to fees was signed by plaintiff: “I hereby agree, in consideration of my attorney, Mathew Marx, and my counsel, Charles Benner, con•ducting the above case forme, to pay my said attorney and counsel an amount ■equal tó 80 percent, of the recovery herein, besides disbursements.” That .action resulted in a verdict for plaintiff for $1,200, which was finally collected, .and defendant paid plaintiff $800, retaining the balance as fees, and taking ■from plaintiff a receipt in full. In the present action there was a verdict for ■plaintiff for $220 and interest. Judgment accordingly, and defendant appeals.

Mathew Marx, (S. B. Noble, of counsel,) for appellant. Jones, Willcox & .Purdy, for respondent.

It is plain enough that the object of this suit is to permit Benner to collect his share of fees from Marx under tile second agreement, but it is difficult to see upon what theory the jury based their verdict. It is clear the plaintiff understood he had agreed to give a portion of the recovery to his attorney and counsel, and equally clear he understood and was satisfied with Ihe settlement, except possibly 5 per cent. Therefore in no event could he

p. 310

claim over $60, that being 5 per cent, on the verdict of $1,200, and the weight, of evidence seems to be in favor of such an amount. There are some errors, in. the admission and rejection of testimony sufficient to warrant granting a new trial, but, as a new trial must necessarily result in a verdict for at least $60, we think the case can be properly disposed of by reducing the judgment to that amount, with interest since the date when the plaintiff received the-$800, without costs to either party on this appeal.