Holmes v. Evans — 59 N.Y. Super. Ct. 136

Majority

p. 136

ARTEMAS H. HOLMES, et al., Appellants v. GEORGE S. EVANS, et al., Respondents.

Headnote

Attorney at'law, services of, under special agreement.

Plaintiffs were employed as attorneys at law, by defendants, to litigate certain claims or make settlement of same. The settlement negotiated was not satisfactory to.defendants, whereupon plaintiffs gave to defendants a blank consent for the substitution of other attorneys, and wrote them a letter consenting that defendants should proceed towards the settlement, and added these words: “in the event that yo'u settle these controversies, upon substantially the same terms as you reject, we shall be entitled to the compensation provided in the agreement.” The referee found, and the evidence supported the finding, that the terms of settlement were not substantially the same terms that the defendants had rejected. Held, that the plaintiffs were not entitled to recover the compensation provided for in the agreement.

Before Sedgwick, Ch. J., Truax and Dugro, JJ.

Decided March 2, 1891.

Appeal by plaintiff from judgment entered upon the report of a referee.

Addison Allen, attorney, and William C. Hornblower of counsel, for appellants.

John C. Tomlinson, for respondents.

The plaintiffs were employed as attorneys at law, by the defendants, to litigate certain

p. 137

claims or to make a settlement of them. They, the plaintiffs, by negotiation, were able to make a settlement. This, however, was not satisfactory to the defendants. Thereupon the plaintiffs gave to defendants a blank consent to substitute attorneys, and wrote a letter consenting that the defendants should proceed to make a settlement, and adding “ in the event that you settle the controversies, upon substantially the same terms as you reject, we shall be entitled to the compensation provided for in the agreement.”

The plaintiffs, therefore, are not entitled to recover unless the settlement afterwards made contained substantially the same terms as did the settlement which the plaintiffs could have made.

The referee finds that the terms were not substantially the same. This is supported by the terms of the respective settlements.

Judgment affirmed, with costs.