Casazza v. Automotive Co. of New Jersey

Full title: MARY CASAZZA et al., Plaintiffs, v. AUTOMOTIVE CO. OF NEW JERSEY…

Court: Appellate Division of the Supreme Court of New York, Second Department

Date published: Jan 30, 1950

276 App. Div. 923 (N.Y. App. Div. 1950)

Opinion

January 30, 1950.

In an action in negligence for damages arising from personal injuries, order substituting another as attorney for the plaintiffs in the place and stead of appellant, fixing appellant's compensation upon a quantum meruit basis, deferring payment thereof pending the outcome of the action and providing that upon such outcome plaintiffs might apply for its reduction in the event the amount thereof should then prove disproportionate to the recovery, affirmed, without costs. Under the circumstances disclosed by this record we find no abuse of the discretion vested in Special Term.

Nolan, P.J., Adel, Sneed and MacCrate, JJ., concur;

Wenzel, J., concurs except as to the provisions of the order which permits plaintiffs to apply for a reduction of the fee as fixed, and votes to modify the order by striking out such provision, with the following memorandum:

If the appellant's fee is fixed on a quantum meruit basis it should not be reduced if the fee fixed proves "disproportionate to [the amount of] the recovery". While in fixing legal fees, the financial return to the client is ordinarily an element for consideration, if it be considered in fixing the fee of a substituted attorney to the extent here indicated, then, too, the outgoing attorney should be permitted to make application for an increased fee, if the amount of recovery is disproportionate to the fee previously fixed, in that it appears to be too small. It is my belief that if a fee be fixed on a quantum meruit basis, at a time when the ultimate result cannot be determined, and rests in great measure upon the diligence and ability of another, it should be neither increased nor reduced.