Gregory v. Seaman

Headnote

Order of reference—attorney and client, accounts between—distinction between attorney and counsel in that regard—when account between attorney and client referable.

Appeal by defendant from an order referring the issues for trial.

This action was upon an attorney’s bill, transferred to plaintiff by one S. F. Gregory, and the bill was annexed to the complaint and embraced numerous items for services and disbursements in seventeen separate suits and proceedings, to each of which items a separate value was affixed. The motion was made and granted on the pleadings and the affidavit annexed to the notice of motion. There were no affidavits or papers presented or used on the hearing by the defendants. Plaintiff’s affidavit stated * ‘ that the trial of the issues herein will necessarily require the examination and statement of long and complicated accounts on the side of the plaintiff, and a long account on the side of the defendants, consisting of items and

charges of many and various dates and of many different and distinct transactions. That the bill of the plaintiff is for services in eighteen separate and distinct suits, proceedings and transactions not connected with each other in any manner, and the items in each of which proceedings, will number from fifteen to fifty. ”

The defendants’ answer admits that Gregory was retained by them in eleven of the cases, which it enumerates ; that he performed some services in each of such cases for the defendants, and then denies each other allegation in the complaint, and denies the value of the services claimed. It then proceeds :

“Third defense.-—That the said Samuel F. Gregory, so far as he performed any services for said defendants as their attorney in said cases, did the same so carelessly, and devoted so little attention and care to the said cases and to the proceedings therein, that the said defendants lost or failed to collect all of the said claims involved in said suits which were due and owing to them, except some small amounts, and that in consequence of such negligence and want of proper care on the part of the said Samuel F. Gregory these defendants suffered damages to the amount of at least fifteen hundred dollars. Fourth defense.—That said Samuel F. Gregory, while he was so acting for said defendants as their attorney, collected for them, as these defendants have been informed and believe, divers sums of money, the amounts of which and the persons from whom collected these defendants are now unable to state. That said Samuel F. Gregory asked leave from these defendants to retain and apply some of such collections on account of his services, which request was acceded to by these defendants, and which amounts these defendants pray, when ascertained, may be applied on account of anything that may be found due to the said Samuel F. Gregory. Fifth defense.—That these defendants, since they so retained the said Samuel F. Gregory, have paid him at divers times, on account of his services and disbursements, in the cases in which he was

so retained,, about the sum. of $945.70 and upwards, which payments were made by these defendants to him on account of his said services and disbursements, and with the promise on the part of the said Samuel F. Gregory that he would perform the said services properly and with due care and attention. Wherefore the defendants demand judgment in then favor, with costs.” The plaintiff put in a reply to so much of the answer as sets up or constitutes, or seeks to set up or constitute, a counter-claim or offset, in which reply he denied each and every allegation thereof.

The court at General Term, said :—“An attorney-at-law may have, as matter of fact, a running account with his client. He may deal with his client and his client with him, so that the relation of debtor and creditor will not be grounded solely upon the facts of each service, but will regard a lawful practice of first charging in account the indebtedness and giving a credit appropriate to the expectation that several items of indebtedness may be liquidated from time to time as the account is rendered, or that partial payments be made from time to time. It is a relation somewhat different from that of counsel, who are usually to be paid for each piece of service as a whole. Whether the relations of the parties to the case were of the kind first alluded to, was, under the pleadings and bill of particulars, a question of fact, for the judge below. On this point there is no reason to disturb his decision, and it further follows that in such a case an order to refer is not erroneous. If the trial of the issues presented by the complaint will involve the taking of a long account, they may be referred, although there is a defense of fraud or negligence (Welsh v. Darragh, 52 N. Y. 590 ).”