Lynch v. Lerche — 57 N.Y. St. Rep. 269

Majority

p. 269

Louise B. Lynch, Resp’t, v. Albrecht J. Lerche, App’lt.

(Supreme Court, General Term, Second Department,

Filed December 1, 1893.)

Headnote

Judgment—Excessive.

Where, under an agreement to divide the proceeds of services, the plaintiff, as assignee of one party thereto, recovers a judgment for $1,000 upon a claim for $1,870, which includes a charge of $1,200, in a case in which defendant testified that they received $210, of which plaintiff’s assignor knew and received half, such recovery is excessive.

Appeal from a judgment entered upon a verdict in favor of plaintiff, and from an order denying a motion for a new trial made on the minutes.

Benjamin W. Downing, for app’lt; L. B. Treadwell, for resp’t.

This is an appeal from a judgment and an order -denying a motion for a new trial upon the minutes. The action is brought to recover upon a claim for services rendered by Leman B. Treadwell as a lawyer, which was assigned to the plaintiff, Louise B. Lynch. The claim was for $1,870, and the jury rendered a verdict in favor of the plaintiff for $1,000. Treadwell and the defendant are both lawyers, and Treadwell is the attorney for the plaintiff in this action. Treadwell was the only witness for the plaintiff, except a boy, whose testimony was immaterial; and the defendant was a witness in his own behalf, and called no other. The testimony in support of the claim was very unsatisfactory, and in our view it was overcome by the testimony of the defendant, and the facts and circumstances developed during the trial. As we have said, the defendant and Treadwell were lawyers. Their ■offices were together, substantially in the same room. Treadwell admits that they took some business together under an agreement to divide the proceeds. Lerche says all the services performed by "Treadwell were under that agreement, and that is most natural. No reason was disclosed for any different arrangement in respect to services involved in this action. If, however, it can be said that the jury has found in favor of the plaintiff, and that we are concluded by the verdict upon the main question, the same ■cannot be said respecting the value of the services, for in respect to such valuation the testimony is entirely insufficient to sustain the verdict. In the first place, the extent of the actual service is very indefinite, and in many cases the charges are excessive, and out of proportion to the labor. In relation to the proof of the value of the services, the detailed testimony of Treadwell consisted of statements of the charges he had made, and he then, near the close of his examination, estimates the value of the entire services rendered at $1,975. That amount includes a charge of $1,200 in the case of Blind Tom, and Lerche .says they received $210 in that case from the committee, under

p. 270

an agreement of which Treadwell had knowledge, and Treadwell received one-half of that sum under the general agreement between them. Treadwell does not deny knowledge of the agreement with the committee to perform the legal services for $210, nor the receipt of one-half of that sum. Upon that point, then, the testimony ofLerche stood uncontradicted, and took the $1,200 charge out of the case. Yet that charge went to the jury, and some portion of it must have been included in the verdict, as it could not have reached the sum of $1,000 independent of that amount. So it appears very plainly that the verdict is excessive, and the testimony is entirely insufficient for its support. The judgment and order denying the motion for a new trial should be reversed, and a new trial granted, with costs to abide the event.

All concur.