Compton v. Whitehouse — 48 N.Y. Super. Ct. 208

Majority

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MANSFIELD COMPTON, Appellant, v. JOHN O. WHITEHOUSE, et al., Respondents.

Headnote

Attorney and client—agreement for compensation, construction of.—Motion to revive action.

W. and H., who had recovered a judgmentagainst S., employed plaintiff to resist S.’s application to be relieved from the judgment, agreeing that he “should have one-half of the judgment and should receive one-half of the money that should thereafter be collected and received thereon.” W. andH. having died, plaintiff brought this action against the executors of each, individually, and as executors, alleging that defendants received from S., without plaintiff’s knowledge or consent, the amount of the judgment and satisfied the judgment of record; and claiming an accounting.

Held, that such agreement amounted to no more than fixing plaintiff’s compensation at one-half of whatever should be collected on the judgment, and did not contemplate that W. and H, should be prevented from collecting the judgment and satisfying it; that the collection of the judgment by the executors of W. and H. was an act done in their representative capacity, and plaintiff has his right of action to recover the amount so collected; but that plaintiff does not state a cause of action against the defendants individually, and therefore, the motion to revive the action against the personal representatives of defendant Whitehouse was properly denied.

Before Freedman and Russell, JJ.

Decided April 3, 1882.

Appeal from an order denying a motion, made by the plaintiff, to revive the action against the personal representatives of John O. Whitehouse, who has died since the action began.

The complaint was entitled “ Mansfield Compton v. John O. Whitehouse and Henry Elliott, and John O. Whitehouse and Henry Elliott, as executors of the last will testament of Joseph O. Whitehouse, deceased, and Henrietta Hollingshead and Charles Aikman, as executors of the last will and testament of William M. Hollingshead, deceased.”

It alleges that in September, 1867, Joseph T. White-

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house and William M. Hollingshead, as partners, recovered a judgment for $1,074, against one Abraham Solomon, from which judgment, which carried a right of arrest, Solomon sought to be discharged' by various proceedings in bankruptcy and in the court of common pleas ; that Whitehouse and Hollingshead employed the plaintiff to resist Solomon’s applications to be relieved from the judgment, agreeing that for such services the plaintiff should have one-half of the judgment and should have and receive one-half of the money that should thereafter be collected and received thereon. The plaintiff claims that he performed his contract and prevented Solomon’s discharge, and that, thereafter, Whitehouse and Hollingshead having died—-the former in 1869 and the latter in 1871—the persons named in the title of this action were appointed their executors, and that afterwards, on June 28, 1871, the defendants received from Solomon, without the knowledge or consent of the plaintiff, the amount of the judgment, and satisfied the judgment of record.

The plaintiff now claims that being entitled to one-half of the amount recovered by the defendants, he is entitled to an accounting on the equity side of the court.

The defendants deny the agreement, deny that they received the full amount of the judgment from Solomon, but allege that it was compromised at $215 ; allege a release by the plaintiff to Solomon of his interest; allege that they were appointed executors in 1870, published the usual notices, and were discharged from their trust in 1879, the plaintiff having made no claim against them.

John O. Whitehouse died in August, 1881, whereupon this motion to revive the action against his executors was made.

Mansfield Compton, appellant in person.

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Alonzo C. Farnham, for respondents.

This motion was made below, and the appeal from the order denying it was argued before us, oh the assumption that the plaintiff had stated in his complaint a cause of action against the defendants personally, as well as against them as executors of their respective testators. The argument was that the alleged injurious acts of the executors of Whitehouse and Hollingshead, as stated in the complaint, were in exercising control and dominion over the plaintiff’s part of the judgment and in receiving his part of the produce thereof, behind his back and without his knowledge or assent, and did not consist merely in breaches of the decedent’s promises.

The contract, as alleged between the plaintiff and the decedent, stated in the view most favorable to the plaintiff, did not contemplate that they should be prevented from collecting the judgment and satisfying it. If the deceased had a right to collect it, their executors had. The plaintiff claims that he was to have one-half the judgment or one-half of whatever amount should be collected thereon. It cannot be said that this per se made him the legal owner of one-half the judgment as it stood upon the record. It amounts to no more than fixing his compensation at one-half of whatever should be collected upon the judgment; that is to say, it was a contract between the deceased that in the event of their ever collecting anything on the judgment, they would pay to the plaintiff one-half of the sum so collected. It cannot, then, be said that it would have been a wrongful act in them, as against the plaintiff, to collect and to satisfy the judgment, with or without the plaintiff’s knowledge, nor was it wrongful in their executors to do, with reference to a judgment standing in their name, what they would have had the right to do if living. It was an act done in their representative capacity—simply the collection of the assets

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of the deceased, and the plaintiff had his right of action to recover upon his contract the amount agreed to be paid him by the deceased. And that was' all.

The complaint does not state a cause of action against the defendants individually, and the motion to revive the action against the personal representatives was, therefore, properly denied.

The order appealed from must be affirmed, with costs.

Freedman, J., concurred.