Epstein v. Hodgetts — 53 N.Y. St. Rep. 321

Majority

p. 321

Alfred Epstein, Resp’t, v. Charles Hodgetts et al., App’lts.

(City Court of New York, General Term,

Filed June 19, 1893.)

Headnote

1. Attorneys—Brokerage.

The statute limiting the amount of brokerage in procuring the loan, or

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forbearance of money to one-half of one per cent has no application to an attorney seeking to recover compensation for his professional services.

2. Same.

In an action by an attorney for services in drawing articles of copartnership, making searches, endeavoring to procure a loan of money and consultations, the court refused to charge at defendants’ request that by statute no greater compensation than one-half of one per cent could be allowed for procuring a loan of money. Held, that even if such refusal was erroneous, defendants were not harmed thereby, as in view of the evidence in relation to the other items it was apparent that the verdict included less than that amount for procuring the loan.

Appeal from a judgment entered upon the verdict of a jury, in favor of the plaintiff, on the 24th day of February, 1893, and from an order denying defendants’ motion for a new trial.

Epstein Brothers, for resp’t; Johnson & Johnson, for app’lts.

The action was commenced by plaintiff to recover the sum of $150 for professional services rendered by the plaintiff, an attorney and counselor at law, to defendants,. in drawing articles of copartnership between the defendants; searching the records for chattel mortgages and other liens against No. 67 Warren street; attending at the last named place on various occasions, and in endeavoring to secure a loan of $6,000 and for various consultations.

The defendant Hodgetts in his answer admits that plaintiff on or about the 10th day of December, 1892, at the request of defendants, performed certain professional services as attorney for defendants as alleged in plaintiff’s complaint.

Denies that such services were worth the sum of $150 ; denies that no part of said sum has been paid ■ admits, that plaintiff at defendants’ request drafted certain articles of Co-partnership, and alleges that the same were of the value and a-t the stipulated price of $20 and that said sum had been fully paid ; denies, that plaintiff rendered any other services for him, and avers that before the commencement of this action he has fully paid any and all indebtedness due by him to the plaintiff.

The defendant Ackron did not appear herein.

The plaintiff testified as to the services rendered by him, and as to the value thereof, $150.

The defendant Ackron testified, in behalf of the plaintiff, as to ' the services rendered by the plaintiff.

Max Moses, an attorney, also testified as to the value of plaintiff’s services.

On the part of the defendants, the defendant Hodgetts testified as to what services had been rendered by the plaintiff; and John McGrlover and James J. Brennen, also testified, on the part of the defendants, as to the value of the services rendered by the plaintiff.

It also appeared from the evidence of the witnesses Moses and McGrlover that one per cent, $60, was a fair charge for procuring a loan of $6,000. „

The trial justice at the close of the testimony, in his charge to the jury, submitted the issues fully, fairly and impartially to them, and at the close of his charge defendants’ attorney made

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the following request: “I ask your honor to charge the jury, that by the statute no greater compensation than one-half of one per cent can be allowed or recovered for procuring a loan . of money.”

By the court: “Do you mean in this case? ”

Defendants’ counsel: “Yes.”

By the court: “I decline so to charge. This is good law, but

does not apply to this case.”

Declined; exception.

The defendants’ attorneys, in their brief submitted, concede that the above exception raises the main point in issue herein, and cite 1 B. S. chap. 20, title 19, art. 1, § 1, which provides that “ § 1. Ho person shall directly or indiiectly take or receive more than fifty cents for brokerage\ soliciting or procuring the loan or forbearance of one hundred dollars for one year, etc.”

This statute was passed to limit the commission of brokers for procuring loans, and has no application to an attorney seeking to recover compensation for his professional services.

Title 19 is entitled “ Of brokerage, stock-jobbing and pawnbrokers.”

Article First “ Begulations concerning brokers.”

The plaintiff herein seeks to recover for legal services rendered by him as an attorney, not for commissions earned by him as a broker.

A similar question arose in Helms v„ Goodwill, 2 Hun, 410 , where defendant sought to be credited with compensation for legal services rendered. -

Smith, J., in his opinion at page 415, says: “ And in view of the case taken by the learned judge, and in respect to the theory or ground upon which he put his decision, he erred, we think, also in refusing to find and decide that the defendant was entitled to be credited in this action, for his services in trying to sell lots, whatever such services were worth.”

Conceding, however, that the trial justice erred in refusing to charge as requested such refusal did not affect the defendant adversely, and did not affect the amount of damages, and defendant has not suffered any injury thereby, and consequently' such refusal was not error.

Plaintiff claimed $150.00 as the amount of all the services rendered by him, including his services in procuring the loan.

The jury rendered their verdict for $125.

The evidence of the plaintiff and of the defendant, Ackron, was that fifty dollars was agreed upon for drawing the articles of co-partnership ; while the defendant Hodgetts testified that “ there was no charge mentioned for the agreement.”

The evidence of the plaintiff to the effect that it took him six hours to make the necessary searches, is uncontradicted; and the evidence of the plaintiff’s witness, Moses, and of defendant’s witness, McGrlover, that five dollars an hour would be a reasonable charge, making thirty dollars in all, is also uncontradicted; while the evidence of defendants’ witness,McG-lover,that “twenty-five dol

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jars' was a fair charge for a lawyer’s day,” is also uncontradicted, and plaintiff testified that he attended on two .different days at 67 Warren street; the uncontradicted evidence thus showing that the plaintiff was entitled to the sum of $105 for his services for drawing the agreement, searching, and attending at 67 Warren street, independent of his compensation for procuring the loan.'

The jury thus, in their verdict for '$125‘, evidently allowed plaintiff only the sum of twenty dollars, or 'one-third of one per cent, for his services in procuring that loan.

The jury passed upon the issues of fact submitted upon the evidence herein, and we think the evidence justified the verdict rendered by them.

There are no merits in the exceptions taken by defendants’ attorneys to the ruling of the trial justice herein, and the judgment and order appealed from must be affirmed; with costs to the respondent.

Van' Wyok and Fitzsihons, JJ., concur.