Opinion
June Term, 1902.
Lawrence E. Brown, for the appellant.
Frederick B. House, for the respondent.
By the petition in this proceeding it appeared that the petitioner employed Mr. Grant as his attorney to procure his reinstatement as doorman in the police department of the city of New York, from which position it was claimed that he had been improperly removed. The attorney instituted proceedings by mandamus to compel the petitioner's reinstatement. The proceeding was successful, resulting in an order directing the petitioner's reinstatement in his position. After such result had been accomplished the petitioner asserted a claim for back pay during the period between the time of his removal and his restoration. To compel payment of this sum the attorney instituted a proceeding by mandamus, but was defeated therein by the court to which the application was made, and such determination was affirmed by this court and the Court of Appeals.
Thereafter the attorney brought an action in favor of the petitioner and against the city to recover such back pay. The petitioner was successful in the action recovering therein the sum of $1,027.54. Subsequently the corporation counsel made discovery of certain facts which he believed ought to have defeated the petitioner in obtaining a restoration to his position and made a motion to set aside the order in the mandamus proceeding; this motion was denied, the attorney for the petitioner opposing the same. After the trial was had, resulting in the judgment, the corporation counsel made an application to the court to reduce the amount of the recovery based upon the facts which he had previously discovered which tended to show that the petitioner ought not to have been reinstated. This motion was granted and the recovery reduced to the sum of $739.32. From the order reducing the recovery an appeal was taken which is now pending.
It is claimed by the petitioner that by virtue of the proceedings and the action there was paid to the attorney $1,080.46, of which sum he became entitled to receive $760.46, but that the attorney has refused to pay over to the petitioner such sum. The opposing affidavit does not put in issue the amount of money which the attorney has received, but he claims that from such sum the petitioner is only entitled to $480.33, which sum he tendered to the petitioner, who refused the same, and, subsequently, for purposes of settlement he offered to pay to the petitioner $569.35 and prosecute the appeal from the order, reducing the amount of the recovery without further charge. This offer the petitioner also refused. The petitioner also states that when he applied to the attorney to institute the proceedings and secure his back pay, he entered into an agreement with the attorney whereby for the sum of $320 the attorney agreed to prosecute all of the proceedings necessary to accomplish the purpose, and that he was to receive no more than such sum. It is at this point that the differences between these parties arise. It is claimed by the attorney, who supports such claim by affidavit, that the agreement which he made with the petitioner did not embrace the mandamus proceedings which were instituted and prosecuted prior to the bringing of the action; that at the time when he brought the action he made an agreement, which is set out in the opposing papers, to conduct the action and certain proceedings for the sum of $320, but that the services which he performed which were not embraced within such agreement were reasonably worth the sum of $450, and that, together with the $320, measures the amount of compensation which he is entitled to retain from the amount of the recovery; that he has offered to pay more than the difference between these sums to the petitioner and that he has a lien upon such fund for the amount of his claim.
By the terms of the agreement it is recited that, in consideration of his services rendered by the attorney in having the petitioner reinstated as doorman in the police department of the city of New York and in consideration of the services rendered and to be rendered as attorney in the trial of the action of the petitioner against the city of New York to recover arrears of pay to the petitioner as such doorman, he agreed to pay to the attorney the sum of $320 out of any amount of such pay which might be recovered from the city of New York or the police department of such city, or either of them, or from any other corporation or person as the result of said action or proceeding, or upon any compromise or settlement of the petitioner's claim, together with the costs of the action. The agreement was entitled, In the Action against the City of New York, bore date January 9, 1901, and was acknowledged on the same day.
It is evident that the agreement was executed subsequent to the institution of the mandamus proceeding to secure petitioner's reinstatement, for by the petition it appears that he retained the attorney in about the month of June, 1898, but the agreement recites that the consideration of the $320 was for services in reinstating him as doorman and for services rendered and to be rendered. It is, therefore, evident that there is a sharp question of fact presented by this proceeding as to whether the agreement for the payment of $320 was to be in full for all of the services to be rendered for the petitioner together with the costs or whether it was limited to the services in the action. The petitioner claims that it covered the whole; such are the averments of his petition. The attorney claims it covered only a part; such are the statements made in his affidavit. The attorney has set out in detail the specific items and value of the services, with respect to the matters which he claims are not embraced or covered by the agreement. We think, upon this state of the record, that the court was not justified in disposing of this matter upon the papers presented. The petitioner had no opportunity to show, in answer to the affidavit of the attorney, that the agreement, although executed after the retainer, was in fact but a formulation of the arrangement made at the time of the original retainer. The recitals in the agreement tend to bear out the petitioner's contention in that regard, while the date of execution and its title shows it to have been executed some time subsequent. Whether the attorney may charge any extra compensation for his services is dependent upon the fact as to whether or not the agreement measured the whole amount, for the whole service that he was entitled to receive. Upon this subject the petitioner has not yet had a full hearing, and we think the court ought to have ordered a reference or have taken proof upon such subject. ( Matter of Raby, 29 App. Div. 225; Matter of Ernst, 54 id. 363; Matter of Thomasson v. Latourette, 63 id. 408.) The attorney is required to show clear legal right to retain the moneys which he claims as against his client, and, in case of doubt, the court should take further proof or, in an exceptional case, order a reference. It is not clear in the present case that the attorney is authorized to retain more than the sum of $320 and his costs out of the sums which he has received. Proof should, therefore, have been taken by the court or a reference ordered, as the attorney is required to clearly establish his right to the sum of money which he insists upon retaining.
The attorney has quite fully set out the character of his services which he has rendered and the charges which he has made for such services not covered by the agreement.
The basis of the charge is upon a quantum meruit, and while the court might have properly determined this question where the facts are all laid before it, yet ordinarily such question ought not to be determined except upon full proof of all the facts. In the present case we think the whole matter should have been sent to a referee to take the proof or the court should have taken it, as to it seemed most expedient.
It follows, therefore, that the order should be reversed, with ten dollars costs and disbursements, and the matter sent to a referee to take proof and report the same to the court with his opinion thereon.
PATTERSON, O'BRIEN, McLAUGHLIN and LAUGHLIN, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and matter sent to referee to take proof and report to the court with his opinion.