Opinion
March, 1898.
Frank E. Hipple (Joseph J. Myers, of counsel), for appellant.
Samuel Hoffman (Samuel Schlesinger, of counsel), for respondent.
The plaintiff, by this action, seeks to recover certain moneys collected by the defendant, an attorney and counselor-at-law, in suits brought in his behalf, against divers persons, for a penalty imposed by a certain statute.
The defendant, while admitting the receipt of the sum he is charged with having collected, denied indebtedness to the plaintiff in any sum whatsoever, and set up a counterclaim for professional services rendered, at plaintiff's request, in twenty-six suits instituted in the Supreme Court, Orange county.
The parties litigant agree that when the defendant was first retained, it was understood, that he might charge $5 for each suit presented in a District Court in the city of New York, and that after the determination of such suits the defendant brought other actions in the Supreme Court, the venue being laid in Orange county. They disagree, however, as to the terms upon which the latter suits were to be presented, the plaintiff contending as to these, that there was to be no charge unless the defendant made a collection, in which event, his compensation was to be as follows: "Where the sum collected was $50, he was to get $10; where the sum of $35 was collected, he was to get $7.50, and where the sum of $25 was collected he was to get $5." The defendant, on the other hand, insists that nothing whatever was said between the parties concerning his fees.
Upon cross-examination, the defendant testified that many other suits were brought in the aforementioned county, in addition to the twenty-six suits in question, that settlements or compromises were effected therein, and that in each of the suits against one Moloney, one Meyer, and one Buchler, he retained $10 of the $50 penalty received. The plaintiff then sought to cross-examine the defendant, relative to the compensation charged or received by him in certain specified cases in which the sum paid was less than $50; but all evidence in respect thereto was excluded upon the objection of the defendant's counsel that it was "immaterial and not within the issue," the plaintiff noting an exception to each ruling.
I fail to perceive upon what theory the testimony so offered was rejected. The defendant had already testified as to his charges in cases where $50 was collected, when his counsel made the objections adverted to.
If it was material to show that fees were charged where a certain sum was collected, it was equally material to prove the compensation paid in all other cases where a compromise was effected.
The testimony sought to be introduced clearly related to a relevant fact, the sole question at issue being whether the parties had agreed upon the compensation of the defendant for services in the Orange county suits. It was, therefore, proper for the plaintiff to fully interrogate the defendant respecting the amount of compensation received by him where a penalty or a portion thereof was paid, the object of the questions so excluded, apparently, being to discredit the defendant's testimony upon said controverted question of fact, by showing upon cross-examination that his charges, in such cases, were made in conformity with the rates, which, according to the plaintiff's testimony, were fixed by the parties therefor.
Therefore, since this cross-examination related to a fact in issue and was directed towards the object of discrediting the defendant's testimony, the plaintiff had the right to pursue it (Platner v. Platner, 78 N.Y. 90, 95; Langley v. Wadsworth, 99 id. 61, 63; Baylies Tr. Pr., p. 179, and citations); hence, the exclusion of the testimony so offered was, in my opinion, error of so radical a nature as to necessitate a reversal of the judgment.
For these reasons, the judgment should be reversed and a new trial ordered in the Municipal Court, borough of Manhattan, fourth district, with costs to the appellant to abide the event.
BEEKMAN, P.J., and GILDERSLEEVE, J., concur.
Judgment reversed and new trial ordered in Municipal Court, with costs to appellant to abide event.