Opinion
Argued October 9, 1916
Decided October 17, 1916
Frederick W. Hottenroth for appellant. George M. Mackellar and Robert Gerbracht, Jr., for respondent.
In March, 1907, the petitioner, Morris Kushner, retained the respondent as his attorney in a proceeding for the opening of Rosedale avenue in the city of New York. The contract of retainer, which was signed by the client, is in writing, and contains the following provision: "I agree to pay, and hereby assign to him [the attorney] for all services, fifty per cent. of the amount paid as purchase price, or recovered for damages over and above amount fixed by city expert. No other compensation whatever, either for expert witness fees or for any other disbursement, is to be paid by me. In case of no award nothing to be paid by me." Thereafter and while the proceeding was still pending, the client gave notice of the cancellation of the contract, and terminated the attorney's authority to appear for him. An award of $6,139.70 was procured by other counsel. Interest upon this award has brought the recovery to $8,803.99. This is $3,197.77 in excess of the value fixed by the city's expert, and the respondent lays claim to fifty per cent of the excess, or $1,598.89. He has filed with the comptroller a notice of lien on the award, and pending the determination of the controversy the comptroller has withheld payment. In a proceeding brought by the client to cancel the lien and compel payment by the comptroller, the Appellate Division, reversing the Special Term, has sustained the attorney's claim, and has held that he is entitled, standing upon his contract, to payment from the fund.
We do not find it necessary, for the disposition of this appeal, to determine whether the contract contains an implied promise by the attorney to pay the expense of litigation, and thereby violates section 74 of the Code of Civil Procedure ( McCoy v. Gas Engine Power Co., 152 App. Div. 642; 208 N.Y. 631; Ransom v. Cutting, 188 N.Y. 447). That section of the Code has been amended since the contract was made and is now section 274 of the Penal Law. If we assume that the contract is not illegal, the attorney is not entitled to compensation according to its terms. Under our recent decision in Martin v. Camp ( 219 N.Y. 170), the client has the right to end the employment at any time before complete performance, and the value of the services then rendered becomes the measure of the attorney's reward. The petitioner has exercised that right, and the attorney's compensation even under a lawful contract must be limited accordingly. But the attorney now before us has made no attempt to prove the value of his services up to the date of the termination of his employment. He has taken his stand upon the position that even though the employment was terminated, he must be paid according to the contract. Our decision in Martin v. Camp shows that position to be untenable. In the absence of any claim by the attorney to recover on a quantum meruit, the court at Special Term was justified in directing that the fund be paid to the petitioner.
The order of the Appellate Division should be reversed, and that of the Special Term affirmed, with costs in the Appellate Division and in this court.
WILLARD BARTLETT, Ch. J., HISCOCK, CHASE, COLLIN, CUDDEBACK, HOGAN and CARDOZO, JJ., concur.
Ordered accordingly.