Tyng v. Marsh

Headnote

I. Attorney and client.

1. Agreements as to aTTORNEY’s compensation.

1. Motion to compel a referee to find the reasonable and act/ual cash, value of services, denied. *

(a) The referee found that the questions involved in the case, in reference to services wherein the agreement was made, were novel, difficult and important, and that the preparation for the trial, and tlie trial, required and involved much labor, study and skill on the part of the defendants, and the same were diligently bestowed by them; he also found the prominent steps taken by defendants in the litigation, that they paid all the disbursements and procured the security on appeal to the court of appeals ; he also found that plaintiff was unable to pay fees, and that defendants’ compensation in these actions depended on success in one of them; he then found as a twentieth finding, “ The compensation so agreed to be paid said defendants was no more than a fair and reasonable compensation to said defendants under the circumstances, and in view of the contingency on which payment of the same depended.”.

On the settlement of the case the referee was requested to find, among other tilings:

“ What was the reasonable and actual cash value of the entire professional services rendered to the plaintiff by defend

ants in the management and conduct of the three actions at law referred to in the pleadings, and the value of the serices rendered in each of said three actions ?

To this, he answered:

“The referee declines to answer this.

“ 1. Because it is immaterial.

“2. Because there is no evidence in the case which, in the judgment of the referee, would enable him to answer this question other than as stated in twentieth finding of fact in referee’s report.”

A motion was then made at special term that the case be sent back to the referee with directions to pass specifically and categorically on the matters contained in this request, as well as the matters contained in other requests made. The motion was denied.

HELD,

no error.

This action was brought against defendants, who are attorneys at law, to recover the sum of $14,253.02, being the balance of $17,253.02, collected by them for the plaintiff from The Commercial Warehouse Company of New York, after deducting the amount which plaintiffs alleged to be a reasonable compensation for their services. ■

Defendants alleged, that after a long, difficult and laborious litigation in an action brought by the plaintiff against The Commercial Warehouse Company of New York, in which the plaintiff originally acted in." person, and in which they were substituted in Ms place as plaintiff’s attorney, they succeeded in collecting from said Commercial Warehouse Company, the sum of $50,971.19 damages, interest and costs.

That out of this sum they retained" $15,000,. and $2,253.02 (the latter sum being the amount of the costs included in the $50,971.19), less the sum of $500, which they loaned to plaintiff, and which had never been

been repaid. This retention was under and pursuant to an agreement between them and the plaintiff in respect to their compensation for their services.

The referee reported that defendants were entitled to judgment in their favor on the merits, dismissing the complaint with costs. Plaintiff appealed. The evidence given on the trial was not contained in the appeal book. The only question presented on the appeal from the judgment was, whether the conclusions of law of the referee were supported by his findings of fact.

Plaintiff also appealed from an order denying a motion made by him to compel the referee to make further findings.

—The referee erred in refusing to pass specifically upon the actual reasonable value of the defendant’s services. - Not only was this a very material issue in this cause, but the action cannot be properly decided, until this fact is specifically passed upon (Haight v. Moore, 5 J. & S. 161). There was evidence upon which such a finding could have been made, had the referee deemed i.t material. The main reason why the referee refused to make a finding upon the subject was that it was immaterial. His refusal to pass upon this question was duly excepted to, and his erroneous action is thus properly presented for review' as a question of law (Code of Civ. Pro. § 993; Vanslyke v. Hyatt, 46 N. Y. 259 ; Rogers v. Wheeler, 52 Id. 262 ; Fallman v. Bressler, 58 Id. 123; Dalrymple v. Hillenbrand, 62 Id. 5; Smith v. Glen Falls Ins. Co., Id. 85). Even if the compensation of the defendants was purely contingent upon their success, that does not make the actual value of their services an immaterial fact here (Wright v. Wright, 9 J. & S. 432).