Gustine v. Stoddard — 30 N.Y. Sup. Ct. 99

Majority

p. 99

LEVI S. GUSTINE, Respondent, v. MARY R. STODDARD, Appellant.

Headnote

Statute of limitations — does not begin to run against attorneys' claim for services, until the termination of the action — is not affected by an intermediate assignment of the cause of action.

In I860 Messrs. Pond & French, as attorneys, for S. 8. Stoddard, commenced an action against one Whiting, in which, they were defeated at the Circuit, but were successful in the Court of Appeals, a judgment in favor of the plaintiff being entered on May 16,1872. Pending-the appeal taken by him

p. 100

' to the General Termj and on September 10, 1809, the plaintiH assigned h'iá-' right pf action to the defendant in. this action subject to the payment of■all-costs and counsel fees of every name and nature, due to the said Pond & (French, and to all costs which ho then was or might become liable to pay to Whiting, which w'efe assumed by the defendant.

Ill this action, brought by the assignee of Messrs. Pond & French, to recover, ;-for their services rendered in the, action against Whiting, Held, that their claim for services, was .entire, and that the statute of limitations did not ■ begin to run against it'uhtil the final termination of tiio action in 1873.

That they were entitled, to recover for the services rendered before, as well as for those rendered after the assignment to the defendant.

Appeal by tbo defendant from a judgment in favor of the plaintiff, entered upon the report of a referee.

The action was brought to recover for professional services rendered by Messrs. Pond & French, which claim had been assigned to tl;C plaintiff, embracing services rendered in different actions, and .continuing from .1806 down to the time of the commencement of ¡this- action, May 25, .1877.

This appeal seeks to review two items, one of $60 and one of $500. As to the- item of $60, the plaintiff, on settling the case, -.offered to deduct it, insisting, however, that it was correct. The principal question is: on the item of $500. Pond & French, on the retainer of AbicLStqddard, commenced an action in 1866, in the parné of Sylvester.-S. Stoddard, against Lewis E. Whiting. Judgr rn'ent therein for dismissal of the complaint, with costs, was entered ¡May 8, 1869. Appeal-was taken May 29,1869, to the General Term. September 16, I860;. Sylvester L. Stoddard assigned to defendant .•his right of action-by q sealed instrument. Therefrom, on the employment of the defendant, Pond & French proceeded with the acitrón. It went to; the Court of Appeals, whore the plaintiff succeeded, March 5,-1872. (See 46 N. Y.,. 627 .) Under the judgment in favor of plaintiff tiras obtained a reference was bad, beginning April, 1872j and: continued to May 16, 1872, when a report jwas made, stating the .amount to be paid by defendant, assignee of jthe .plaintiff, in that action, to redeem the premises. Such payment was accordingly made, and the premises were convoyed by ,Whiting to defendant.; ,

UvThe services of.Pp.nd & French before the assignment to defend

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gnt were worth $500. The question- is, whether the claim for those services is barred by the statute of limitations.

* The assignment by Sylvester S. Stoddard to defendant is made, “ subject to the payment by said Mary R. Stoddard of all costs and counsel fees of every name and nature, due to Pond & .French, my¡ attorneys, in the action, and all costs which I am- now liable for, or may become liable to pay to the defendant in:said action, if any; all which-said Mary.R., by accepting this assignment and transfer,' agrees to and does assume.” .....

P. II. Cowen, for the appellant.

A. Pond, for the respondent.

The contract of the attorney who prosecutes -a suit is entire! The statute does not begin to run until his relation to the suit aá attorney has ceased. (Bathgate v. Haskin, 59 N. Y., 533 .) 'This is the doctrine of Adams v. Port Plain Bank ( 36 N. Y., 255 ), Mygatt v. Wilcox (45 Id., 309 .) If, for instance, there- had been n'o assignment to the defendant, the relation of -Pond & French to the suit as attorneys would not have ceased till May 16, 1872; and the statute would not have commenced running- xintil that time. The only question here presented relates to the 'effect óf the assignment to'the defendant, and of her assumption-'of - the costs, for which Stoddard was then liable. Now,' clearly,'her assumption of these costs did not make her liable any sooner than'Stoddard would have been. She stepped into his place and-became liable just-, as he had been. As against Stoddard, it is above- shown that the right of action would have arisen on the termination of the action. The defendant stands in the same position. If Messfs. Pond & French; immediately on the making of the assignment to the defendant, had sued her, she might well have answered in 1 defense,-that their contract xvas entire, and had not yet been completed that she had not undertaken to pay, so long as their l'elaiiori to the suit as attorneys continued.

' Of course these remarks do not mean tliat the client,may riot terminate tilo 'relation' at pleasure ;’ -or the -attorney; -dm í-eásonáble

p. 102

notice. None of these questions arise here. For .tlie .relation was continued the same after the assignment as before, with the assent of the parties. We think, therefore, that the claim of $500 was not barred by the statute.

As to the item of $60, we think that the statute of limitations is sufficiently pleaded. The payment of $30 did not take this claim out of the statute of limitations. It was not made on account of this claim. Nor is the present case analogous to Smith v. Velie ( 60 N. Y., 106 ).

' The plaintiff, having offered to deduct this $60, the judgment should be affirmed, with costs of appeal, on plaintiff’s stipulating to deduct the amount of $60 from the judgment.

Present — Learned, P. J., Bockes and Landon, JJ.

Judgment affirmed, with costs, on plaintiff’s stipulating to deduct $60 from recovery.