Opinion
February Term, 1900.
Present — Van Brunt, P.J., Rumsey, Patterson, O'Brien and Ingraham, JJ.
Order affirmed, with ten dollars costs and disbursements, on the opinion of the court below.
The following is the opinion of the court below:
This is an application to compel an attorney to pay over money to clients, who are executors and trustees of an estate. The only question involved is the amount which the attorney is entitled to withhold as compensation, he having already offered to pay into court what he considers them entitled to. His agreement with the executors was that he should receive twenty per cent of the principal and interest of the claim, when collected. Subsequently, and while the suit was pending, he called upon Henry H. Jackson, the executor with whom all his dealings were had. Mr. Jackson, at that interview, asked him to hasten the matter, as they wished to get the money speedily. He replied that he could probably reach an agreement with the corporation counsel to grant judgment on the Jackson claim, and also a number of other claims at the same time, if the costs accrued at that time, and amounting to about $100 in each case, were remitted. He also asked Mr. Jackson to agree to allow him something in addition to the twenty per cent specified in the original contract. Evidently no agreement to pay anything more was reached at that meeting, because in his own affidavit it is stated: "I told him (Jackson) to think over the proposition, and let me know what he thought of it." Subsequently, and after he had obtained the judgment as desired, he had another interview with Mr. Jackson, who consented to allow him, as he states in his affidavit, "between two and three hundred dollars" additional; but subsequently advised him that the other executors would not consent to any additional compensation. It is very difficult to make out, from the defendant's own statement of the case, that there was ever any definite meeting of the minds between him and Mr. Jackson for any extra payment. Besides this, there does not seem to have been any consideration to support an agreement, if made. By reason of the special agreement for compensation, the costs in this particular action belonged to the clients, and not to the attorney; and there is no statement that, in order to secure a speedy settlement and judgment in this action, it was necessary to remit costs in the other actions that were settled at the same time with it. Furthermore, it appears that the defendant did not wait for Mr. Jackson's response to his suggestion for additional compensation, but proceeded to settle the suit, seemingly relying upon the chance that the executors would subsequently be willing to modify the original agreement. This they refused to do. Motion granted.