Citation Numbers: 31 N.Y.S. 987, 90 N.Y. Sup. Ct. 338, 64 N.Y. St. Rep. 847
Judges: Haight
Filed Date: 12/27/1894
Status: Precedential
Modified Date: 1/13/2023
This action was brought to recover for services and' disbursements rendered and paid by the plaintiff as the attorney for the defendant. The answer alleged negligence in the performance of the services; that they had not been fully performed; and set up a counterclaim. The counterclaim, to the extent of $45.35, was admitted. Upon the trial the plaintiff showed that he was an attorney and counselor in this court, and that he had been retained by the defendant to prosecute an action in the county court of Chatauqua
At the conclusion of the plaintiff’s evidence, the defendant’s counsel asked the court to direct a verdict in favor of the defendant for $10, as an affirmative judgment. This motion was granted, and an exception was taken thereto by the plaintiff. It is evident that the trial court, in reaching this result, must have allowed certain items to the plaintiff, and deducted the amount thereof from so much of defendant’s counterclaim as was admitted. It does not, however, appear that the court allowed anything for the services rendered by the plaintiff in the three actions above mentioned. In the first, as we have seen, the plaintiff had prosecuted the same through the trial, and had been unsuccessful. The duty of entering judgment did not devolve upon him, but upon the successful party. His services as to that case had been fully completed under the original retainer. True, he then entered into an agreement with the defendant to move for a new trial, and, if necessary, prosecute the case on an appeal to the general term; but that was under a separate and distinct arrangement. As to the other actions, his services may not have been fully performed when this action was brought. He had, however, tried them, summed them up, and submitted them to the referee for decision. It was then that the conversation took place, already related, in reference to his having, some money, and in which the defendant appears to have repudiated the plaintiff’s claim, and refused to pay him anything. The question is thus presented as to whether the plaintiff was justified in abandoning the cases, and insisting upon his payment in full for the services rendered.
An attorney who is retained generally to conduct a legal proceeding doubtless enters into an entire contract to conduct the proceeding to its termination, and he cannot abandon the service of his-client without justifiable cause and upon reasonable notice. If his compensation is stipulated, and he, without just cause, abandons his client before the proceeding for which he was retained has been conducted to its termination, he forfeits his right to payment for services rendered. If the value of his services has not been agreed upon, but he is merely retained in a case upon the implied understanding that he shall have what his services are fairly and reasonably worth, the attorney may properly ask from time to time for advances with which to pay the expenses of the litigation, and to apply upon his services; and, if the client unreasonably refuses to advance money for such purposes in a reasonable amount during the progress of a long litigation, sufficient cause may be furnished to justify the attorney in withdrawing from the service of his client. See Tenney v. Berger, 98 N. Y. 524-529; Sessions v. Palmeter (Sup.) 26 N. Y. Supp. 1076. Applying this rule to the facts under consideration, it appears to us that the trial court could not properly say, as a matter of law, that the plaintiff’s request for money, under the circumstances, was unreasonable, and that the jury might have found from the evidence that the language in which the defendant repudiated his claim, and refused to pay him anything, furnished sufficient grounds for him to consider his services as an attorney for-