Kneeland v. Hurdy — 97 N.Y.S. 957

Majority

p. 957

KNEELAND v. HURDY.

(Supreme Court, Appellate Term.

March 2, 1906.)

Headnote

Attorney and Client—Contract of Employment—Evidence.

Defendant having employed an attorney In a divorce proceeding, such attorney requested plaintiff to appear in court for defendant, and take a default in such action. Plaintiff testified that, when he reached the court, and before acting in compliance with the request of defendant’s attorney, he told defendant that she would be obliged to pay him $50 for his services, to which she assented. Defendant denied such agreement, and was corroborated by a student in the office of her attorney of record in the divorce suit, who was instrumental in bringing the case to him, and such attorney did not testify that he told plaintiff that defendant would pay him for his services, or that he had any authority to engage him, and that, while he was retained to prosecute the divorce- suit, he stated to the law student that he would not try the case, though he admitted, that he: was-paid for -so 'doing. Held,, that such facts -were insufficient to establish a contract to pay plaintiff for his services. ’

p. 958

Appeal from Municipal Court, Borough of Manhattan, Twelfth District.

Action by A. Delos Kneelafid against Annié Hurdy. From a Municipal Court judgment in favor of plaintiff, defendant appeals'..

Reversed.

Argued before SCOTT, P. J., and GIEGERIGH and GREEN-BAUM, JJ.

Solomon Brinn, for appellant. •

A. Delos Kneeland (Charles R. Carruth, of counsel), for respondent.

The circumstances under which plaintiff claims that defendant agreed to pay him for his services as an attorney are rather peculiar. He claims that he went to court, at the request of the defendant’s attorney of record in a divorce case in which she was plaintiff, for the purpose of taking a default therein, and that when he reached the court, and before acting in compliance with the request of the attorney who sent him, he told the defendant that she would be obliged to pay him $50. for the service that he was about to render, to which she assented. Not only does defendant emphatically deny such an arrangement, but she is supported in her denial by a witness who was in court upon the default, and who had been a student in the office of the defendant’s attorney of record in the divorce case, and who was •instrumental in bringing the case to said attorney. Defendant’s, attorney in the divorce action was called as a witness by plaintiff, who did not testify that when he asked plaintiff to go to court that he told plaintiff that defendant would pay him for his services, or that he had any authority from défendant to engage him; and although this witness testified that, when he accepted a retainer from the law student who brought him the case, he told him he would not try the case, yet he nevertheless admits that he was paid for trying the case.

To permit this judgment to stand would be to compel the defendant to pay two lawyers for the same service, when no previous understanding had been made with her as to the need of a second lawyer. It is undisputed that defendant had no knowledge of plaintiff’s existence, nor of the fact that a strange lawyer was to appear for her, until she reached court, whither she had been requested to go by her own attorney. We think that justice requires a reversal of the judgment.

Judgment'reversed, and new trial ordered, with costs to’appellant to abide the event. All concur. .