Opinion
11-06-1899
HUDSON TRUST & SAVINGS INST. v. CARR-CURRAN PAPER MILLS et al.
William D. Edwards, for the motion. Henry M. Nutzhorn, opposed.
Action by the Hudson Trust & Savings Institution against the Carr-Curran Paper Mills and others. Motion to substitute solicitor.
William D. Edwards, for the motion.
Henry M. Nutzhorn, opposed.
PITNEY, V. C. (orally). Mr. Nutzhorn was solicitor for the defendants Clark & Spencer, who obtained a decree for a considerable sum of money,—about $4,000. Subsequently that decree was assigned by Clark & Spencer to Mr. Edwards' client, and Mr. Edwards moved to substitute his firm as solicitors in place of Mr. Nutzhorn; the object being to enable them to control the fund in the hands of the sheriff or in court, which fund is the result of Clark & Spencer's decree. Mr. Nutzhorn objects to the substitution, unless his bill for services is paid, in addition to the taxed bill of costs. Mr. Edwards is willing to pay the taxed bill of costs, and also the extra services, but the parties disagree as to the amount of those extra services. The case has been presented as though Mr. Nutzhorn's rights must stand or fall upon the question of his removal as solicitor, and the substitution of Mr. Edwards' firm in his place. In this both parties are wrong. The client has at all times an absolute right to change his solicitor; but he cannot, in my judgment, in so doing, deprive his solicitor of his right to compensation, or injure or destroy any lien which the solicitor has upon the fruit of his labors. Here it is known to the court that Mr. Nutzhorn has been active in procuring this decree, and there is a fund in court which is the fruit of his labors; and upon that fund he has a lien for the value of his services, as well as for the taxed costs. And, while I think that he cannot resist a motion to substitute a solicitor in his place, that motion cannot be granted except upon terms that Mr. Nutzhorn's lien upon the fund shall not be disturbed thereby.
Some discussion has been had as to the value of Mr. Nutzhorn's services, and the proper mode of ascertaining their value, and the parties seem inclined to submit that question to me. The proper material therefor has not been furnished to the court. Mr. Nutzhorn must make out a detailed schedule of his services and disbursements, and serve it upon the other side; and then, if they cannot agree, it may be either referred to a master, or determined by the court itself in a summary manner upon hearing the parties. I may as well, however, state roughly what I understand to be the principle upon which the court must act in ascertaining his compensation. The matter underwent consideration recently by the court of errors and appeals in the case of Strong v. Mundy, 52 N. J. Eq. 834, 31 Atl. 611, in which that court reviewed and reversed an order advised by me. There is a great difference in the mode of ascertaining the value of solicitors' services in England and this country. In England the solicitor pays the counsel. He is not a counselor himself, and counsel fees and solicitor's fees are entirely distinct, A solicitor pays the counsel, and then he has his right of action against his client for all moneys that he has paid out, and for his own fees and services. Everything that a solicitor does in England, if it is writing a letter, or going across the street to see another man, making any inquiry,—anything that you can imagine that a solicitor can do,—whether there is any suit pending, or even contemplated, or not, is subject to taxation under a regular schedule of fees. I examined the subject for myself, and have the last edition of the English book on the subject. And the practice is for the solicitor to make out a schedule of his services, —and a good deal of it is per diem, too,—and hand it to his client. He must render a regular bill. If the client wishes to have it taxed, he can have it taxed, and for that purpose it goes before what is called a "taxing master," who is the judge; and he determines the reasonableness of all charges, and looks over the vouchers for moneys paid, and all that sort of thing. Then, when it is finally determined, the solicitor can sue for it. And there are two kinds of taxation there, as well as here. One is taxation as between solicitor and client, and the other is taxation as between parties as to what shall be recovered in suits from the other side. A solicitor is obliged to pay out moneys and to do work. There are a number of items that he cannot recover from the other side. For instance, the whole amount of the witness fees may not be allowed there. The taxing master does not always allow as much as the solicitor is obliged to pay, nor does he always allow as much counsel fee as he pays. He may employ three counsel. The law does not allow taxation for more than two, as against the other side. Therefore the bill as taxed between solicitor and client is a different thing from the bill as taxed between party and party. Now, in Mundy v. Schantz (N. J. Ch.) 30 Atl. 322, I held that in the absence of any proof of any contract for extra pay, or of any services not in the fee bill,— any extra services performed besides what was included in the items allowed him in the fee bill,—he could not recover. If he proved that he performed services and did work outside the fee bill, he was entitled to pay for it, or, if he stipulated in advance for compensation greater than that fixed by the fee bill, he was so entitled. The court of errors and appeals differed with me, and said that the fees allowed in the fee bill were not the amount that the solicitor was entitled to recover against the client for the work mentioned in the fee bill. I thought they made a mistake. A learned counsel said to me that the law as I laid it down had been the law in England for 500 years, and I am quite sure it had been; but the rule laid down by the court of errors and appeals is the law now. The law as to recovery of counsel fees, eo nomine, has not been changed by that decision. The attendance of the solicitor in court, even though he does not open his lips, even though you do not allow anything for counsel fees eo nomine, entitles him, under that decision, in my judgment, to compensation. Although I do not think that decision particularly affects this case, it does show the court of appeals to be liberal. Now, in my judgment, for all that Mr. Nutzhorn has done at the request of his client (directly or indirectly, because there is an intermediate counsel), Mr. Nutzhorn has a lien upon this fund; and, unless he has a guaranty that he will be paid, he is entitled to have the fund paid into court. The client is entitled at any time to change his solicitor. The lien which is in his way is only a lien upon papers. If you merely want to change his relation, and discharge him as solicitor, you have got a right to do it; but you cannot disturb his lien upon the fund recovered, for what he has already done.