Holmes v. Evans — 36 N.Y. St. Rep. 933

Majority

p. 933

Artemas H. Holmes et al., Appl’ts, v. George S. Evans et al., Resp’ts.

(New York Superior Court, General Term,

Filed March 2, 1891.)

Headnote

Attorneys—Compensation for services.

Plaintiffs were employed by defendants to litigate or make settlement of certain claims. A settlement made by them not being satisfactory to defendants, plaintiffs gave a consent to substitution and wrote a letter saying that if a settlement was made on substantially the terms rejected, they should be entitled to their compensation. Held, that they were not entitled to recover unless the settlement subsequently made by defendants contained substantially the same terms as that made by plaintiffs.

Appeal by plaintiffs from judgment entered upon the report of a referee.

William B. Horriblower, for app’lts; John 0. Tomlinson, for resp’ts.

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 in 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 plaintiffs 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.

Sedgwick, Ch. J., Truax and Dugro, JJ., concur.