Caccia v. Isecke

Gaynor, J.: This plaintiff brought an action on a life insurance policy, and this defendant was her attorney therein. On the first trial the .case was dismissed. On appeal by the plaintiff the judgment was reversed, on the next trial the plaintiff recovered, on appeal by the defendant that judgment was reversed, and on the next trial the plaintiff again recovered and entered judgment for the amount of the verdict, $493.74, plus taxed costs, $448.68, and taxed disbursements,' $105.94, total $1,048.36. The defendant again appealed, but before argument of tire - appeal paid to the attorney (this defendant) $1,128.36' in full. This included the amount of.the said judgment appealed from, and the plaintiff’s costs of the appeal, $80. The settlement-was made and the money paid to this defendant on May 5tli, 1905. Over a year later, viz., on May 28th, 1906, he sent to the plaintiff his check for $254.25 (i. e., half of the said verdict, $247.87, plus bank interest on it meanwhile, $7.38), and kept the other half, and all of the said costs, $528.68 (i.. e., $448.68 included in the judgment and $80'on appeal), and also the said disbursements, for himself. In brief, he kept $881.49 and gave the plaintiff $246.87. Of the amount he kept, the sum of $105.94 was the amount of the said taxed disbursements, which he was .entitled to retain, for he had paid the disbursements. This left him $775.55 clear for his services. But this action is to -recover the amount of- the said taxed costs which he retained, viz., $448.68, the additional $80 not [781] being sued' for. The summons and complaint were for $500, but the plaintiff restricted his claim to this amount on the trial. The defendant pleaded a general denial, and the defences of payment and accord and satisfaction. The justibe gave the plaintiff judgment for the full amount claimed. This adjustment would leave the defendant $326.87 clear for his services, besides the said $105.94, the amount of his disbursements.- The costs in a judgment belong to the client and not to the attorney in the absence of an agreement to the contrary (Earley v. Whitney, 106 App. Div. 399). The plaintiff therefore made out her case by proving that the defendant kept the costs. The defendant’s general denial obviously-failed, for he collected the costs and kept them. His defence of payment failed, for he never paid them to the plaintiff. His defence of accord and satisfaction failed, for he did not even attempt to prove it on .the trial. The plaintiff was therefore entitled to judgment, except that the'' defendant was allowed to testify without objection that he had made an agreement with the plaintiff after the first trial that he was to have one-half of the damages that might be recovered, 'and all of the taxed costs, for his compensation. This the plaintiff denied; and the Justice’s decision in favor of the plaintiff cannot be said to be against the weight of evidence. The defendant next. testified that his services were worth $750 or $800. The question calling- for this was objected to by the plaintiff on the carefully stated ground that it was “incompetent.and immaterial for the reason that the defendant is contending that lie has a contract, and he is attempting to prove, I presume, quantum meruit”. This may or may not have been a good objection, but the Justice was not allowed to rule on it, for defendant’s counsel disclaimed that he was seeking to prove quantum meruit, saying that he was “ attempting to prove whether it is a fair and conscionable contract ”, whereupon the evidence was allowed. It was deemed' and apparently was competent and necessary for the purpose for which it was thus restricted, offered and received, because of a recent decision (Morehouse v. Brooklyn Heights R. R. Co., 185 N. Y. 520). Another attorney gave the same evidence afterwards. It was not objected to, nor was it necessary nor would it have been orderly to object to it, for it came under the same ruling as the previous testimony of the defendant on -that head. [782] This is a case, however, in which the amount bf the costs as "taxed and paid may he taken as the measure of the attorney’s compensation, in the absence of an agreement -fixing the same, or of any evidence and finding of the value of his services as upon qu,antum meruit. The recovery should therefore be reduced-accordingly. The judgment is reversed, unless the plaintiff stipulate within ten days to reduce the damages to $246.87, with interest from June 1st, 1905, in which case it is affirmed, without costs to either party here. Woodward, Jenks and Rich, JJ., concurred; Hooker, J., read for reversal.