Clarkson v. Young — 33 N.Y. St. Rep. 579

Majority

p. 579

William K. Clarkson, Resp’t, v. Emma Young and Peter A. Young, App’lts.

(City Court of Brooklyn,

General Term,

Filed October 27, 1890.)

Headnote

1. Attorneys—Limitation.

The statute of limitations does not begin to run against an attorney’s claim for compensation until his relation as attorney in the suit has terminated.

3. Same.

Plaintiff and his partner were employed by defendants to take an appeal for them, which they did, and procured a reversal and new trial, and on the new trial procured a report in defendants’ favor in October, 1883. Defendants failing to comply with a request for payment of the services performed, plaintiffs did not enter judgment on the report until February, 1888. On the trial of this action the referee refused to find that the attorneys refused to perform services unless they were paid for those already performed, or that defendants requested them to perform no further services. Meld, that the statute did not begin to run until the entry of judgment in February, 1888.

Appeal from judgment in favor of plaintiff, entered on the report of a referee. «

Dana & Glarhson, for resp’t; Horace Graves, for app’lts.

Plaintiff, as assignee of the law firm of Dana & Clarkson, Esqs., brought this action in March, 1889, to recover the sum of $536.16, alleged to be due for professional services, including disbursements, rendered by plaintiff’s assignors to de

p. 580

fendants, between October 1, 1880, and March 1, 1888. The issues were referred to Hon. Joseph Aspinwall, who rendered a report in favor of plaintiff for the full amount claimed, and from the judgment entered thereon defendants take this appeal.

It appears from the evidence that in October, 1880, defendants' in this action had been sued by Andrew S. Wheeler, and that he had recovered a judgment against them, which had been affirmed by the general term of the supreme court; their former lawyer, Mr. ICnaebel, had left the city, and defendants retained Dana & Clark-son to prosecute an appeal to the court of appeals; this they did, and with the aid of Messrs. Yan Cott & Winslow, retained by defendants as counsel, a reversal of the judgment was obtained in the court of appeals, and a new trial ordered. On the new trial before a referee defendants were successful, and in October,. 1882, Messrs. Dana & Clarkson obtained the referee’s report in their favor, and on February 23, 1888, Dana & Clarkson entered final judgment. It will be observed that there is a lapse of over five years between the rendition of the referee’s report and the entry of final judgment. After the rendition of the referee’s report, it appears that Dana & Clarkson sought to obtain compensation for the services they had rendered, and, failing that, they took no further steps till February, 1888, when, as before stated, they entered final judgment.

' The principal defense urged by the learned counsel for the appellants is the statute of limitations, it being contended by him that the request or demand in 1882 for- payment before proceeding further was virtually a discharge or abandonment by Dana & Clarkson of their position as attorneys for the defendants, and that the statute began to run from that time. There is a decided conflict between the parties as to exactly what took place in 1882; as to whether Dana & Clarkson then, in default of payment of their claims, merely sat still and postpohed the entry of final judgment till some arrangement should be made for the settlement of their claim, or as to whether, as defendants claim, Dana & Clarkson abandoned the case and were directed by defendants to do nothing further. Certain letters from Dana & Clarkson to the defendant, Peter A. Young, ranging in date from November, 1882, to June, 1883, apparently relating to Dana & Clarkson’s request for a settlement, were offered in evidence on the trial by defendants’ counsel, but, as they are not printed in the case, we are left in the dark as to their contents. The learned referee who heard the witnesses testify, and who also had these letters before him, has refused to find as requested by defendant’s counsel, that in November, 1882, “Dana & Clarkson refused to perform further services-for the defendants, unless they were paid for the services up to that time rendered, and the defendants requested said Dana & Clarkson to perform no further services in said action,” and we feel constrained to adopt his finding in that respect.

While it is undoubtedly the law, as claimed by defendants’ counsel, that Dana & Clarkson’s contract was an entire one, and that they had no legal right to insist upon compensation till they had conducted the litigation to its termination, on the other hand,,

p. 581

the statute did not begin to run against their claim for compensation until their relation as attorneys in the suit had terminated.

In Bathgate v. Haskin, 59 N. Y., 533 , the court of appeals say: “ The client may terminate it (the employment) at his pleasure, or the attorney may do so after reasonable notice; but, in the absence of proof to the contrary, the presumption is that it continues until the litigation has ended;”' We think that the statute of limitations did not begin to run till the entry of final judgment in February, 1888, and consequently does not furnish a defense to the claim in suit.

We are further of the opinion that the-proof was ample to sustain a retainer of Dana & Clarkson by both defendants.

It is further contended by defendants that Dana & Clarkson succeeded to Mr. Knaebel’s agreement with defendants for compensation, which was to be one-fourth of the land affected by the litigation if successful; that one-fourth of the land was conveyed to Van Cott & Winslow for their services as counsel, which also included Dana & Clarkson’s fees, and that, consequently, defendants owe Dana & Clarkson nothing. We can find no evidence in the case to sustain such a contention.

We fail to see that any error was committed by the referee in excluding the agreement between Van Cott & Winslow and Dana & Clarkson. It is not printed in the case and we are consequently unable to form any opinion as to its relevancy; for aught that appears to the contrary it had no bearing on the question of defendant’s liability to the plaintiff, and was therefore irrelevant and ■ properly excluded.

For the reasons above stated, we think that the judgment should be affirmed.

Judgment affirmed, with costs.

Clement, Ch. J., concurs.