Opinion
June 3, 1942.
Consolidated action by Richard J. Mackey against Passaic Stone Company, Inc., and another for attorney's fees.
Judgment for defendant on first cause of action and judgment for plaintiff on second cause of action.
Mackey Herrlich, of New York City (Charles B. Schwanda, of Jackson Heights, of counsel), for plaintiff.
Regan Murray, of Flushing (John A. Murray, Jr., of Flushing, of counsel), for defendant.
In this consolidated action plaintiff alleges in his complaint two causes of action. In the first cause of action he claims the sum of $509.96 is due him as the balance of his fee for representing the defendants as an attorney in the prosecution of an action against Sowerbutt Bros. and others in the District Court of New Jersey. The second cause of action is brought upon a quantum meruit basis for.services rendered in behalf of the defendant Passaic Stone Co., Inc., against the City of New York.
The defendants in addition to a denial of the allegations of the complaint, seek a judgment against plaintiff in the sum of $831.41.
It appears that on March 13, 1939, a letter retaining the plaintiff herein was signed by the defendant Passaic Stone Co., Inc., which at a later date was extended to include the individual defendant. That agreement provided as follows:
"I hereby retain you to represent me in an action to be brought in the United States Distritt Court for the District of New Jersey to recover for damages to which I am entitled for breach of contract from Sowerbutt Bros. a partnership consisting of John and Richard Sowerbutt, and Sowerbutt Quarries, owned and operated by Abraham Vandemere, or such other persons as may be responsible for my loss of profits in connection with my bid which was accepted by the City of New York to supply stone to the North Beach Airport.
"I agree to pay you for representing me thirty-five percent (35%) of any moneys recovered whether as a result of settlement or after trial; and I further agree to pay the necessary disbursements of the action.
"It is understood that if no recovery is obtained in any way, no fee will be required of me."
At the time of the signing of the retainer, the court finds, that the plaintiff was not informed nor did he know of any claims then existing in favor of Sowerbutt Bros. against the defendants herein. However, prior to the trial in the New Jersey action the plaintiff did learn of certain claims existing but he did nothing to change or clarify the terms of their agreement. After trial of the New Jersey action judgment was obtained in favor of the defendants herein in the sum of $5,114.47. But a counterclaim in favor of Sowerbutt Bros. was allowed in the sum of $3,835.37. The amount paid to the defendants herein was $1,279.10 representing the difference between the two foregoing amounts which was retained by plaintiff as part payment of his fee. A satisfaction of the judgment entered in behalf of Sowerbutt Bros. on their counterclaim was also given to the defendants herein.
The whole controversy in this action arises out of the construction of the retainer agreement quoted above. Plaintiff contends that his fee 36 N.Y.S.2d — 151/2. should be based upon the judgment obtained upon the claim which he prosecuted rather than upon the amount paid. The defendants argue otherwise.
It is well settled that if an ambiguity arises with respect to an agreement between an attorney and his client the agreement is to be construed most strongly in favor of the client. Matter of Hawke, 148 App.Div. 326, 328, 133 N.Y.S. 23. As was stated in Samuels v. Simpson, 144 App.Div. 466, at page 469, 129 N.Y.S. 534, at page 536: "An attorney ought to have his agreements with his clients so plain as not to require construction, and, even though the client has independent advice, we think that doubtful clauses are to be construed most strongly against the attorney."
In 7 Corpus Juris Secundum, Attorney and Client, § 191, p. 1090, it is stated: "The percentage coming to the attorney is usually reckoned on the amount actually recovered by the client, and not on the amount of the judgment, unless the language of the contract is such as to justify such an interpretation."
In the instant case there was an opportunity afforded plaintiff to clarify the agreement after he had learned of the claims existing in favor of Sowerbutt Bros. But he failed to do so. Accordingly, I find that plaintiff is not entitled to judgment on the first cause of action, and in view of the fact that he received more than he was entitled to I find in favor of the defendants in the sum of $831.41 with interest from September 27, 1941.
As to the second cause of action I find that plaintiff is entitled to the sum of $508.27 with interest from December 1, 1941. While it is true that an attorney may be discharged at any time by his client yet the attorney is entitled to the reasonable value for his services unless there is sufficient reason for withholding compensation.
As a result of the dispute between the parties as outlined above, the defendants informed the plaintiff that they did not desire him to continue as their attorney in the prosecution of their claim against the City of New York. The aforesaid dispute was honestly founded and as no evidence has been offered that the plaintiff in any way neglected to properly represent his clients, I do not believe the defendants' contention that no fee should be paid for the services theretofore rendered on their behalf against the City should be upheld.
Submit judgments in accordance with the above on notice. No costs.