De Angelis v. Bank for Savings

Lehman, J. The plaintiff employed an attorney, under a written contract to prosecute this action against the savings bank to recover the amount due under a certain account, and agreed to pay the .attorney the sum of $225 and the costs and disbursements- of the action, “ provided he is successful in recovering the amount on deposit, whether by action, set [395] tlement or otherwise.” The attorney agreed that he was to receive no compensation for his services unless he was successful. The action came to trial, and the complaint was dismissed. Thereafter the plaintiff moved for a substitution of attorneys, alleging no misconduct against his original attorney and offering to pay him the amount of his disbursements. The original attorney asked the court that, if an order be entered substituting another attorney, the same provide for the payment of his disbursements; and that some provision be made in said order 'to protect his lien upon any verdict, decision or judgment hereinafter procured by the plaintiff to the extent of $225. The trial justice then entered an order providing for a substitution upon payment of the disbursements. The order also contained a provision that the original attorney “ have a lien on any recovery had herein upon the cause of action set forth in the complaint to the extent of $225.” The plaintiff appeals from this provision. It is not seriously disputed that the attorney is entitled to a lien for the compensation to which he may be entitled for his services. He ds not entitled, however, to compensation under the written contract. The attorney is bound to entire performance and cannot recover under the contract until he has obtained the money on deposit. Roake v. Palmer, 119 App. Div. 64; Johnson v. Ravitch, 113 id. 810. “ While the attorney is thus bound to entire performance, and the contract as to him is treated as an entire contract, it is a singular feature of the law that it should not be treated as an entire contract upon the other side; for it is held that a client may discharge his attorney, arbitrarily, without any cause, at any time, and be liable to pay him only for the services which he has rendered up to the time of his discharge.” Tenney v. Berger, 93 N. Y. 524, 529. In this case there is no evidence of the value of the services up to the present time, and no reason appears why these services should have been appraised after a dismissal of the complaint at the same amount which the parties agreed should be paid only if the proceedings were carried to a successful termination. Upon the affidavits presented, the [396] order should have contained a provision that the lien of the attorney for the value of his services should be'preserved; the amount of the lien to be fixed either by the court or the referee, if the plaintiff ever secured a judgment in the action. The order, so far as appealed from, should be reversed, with ten dollars costs and disbursements, and the proceedings remitted to the court below for further action. Seabuby and Page, JJ., concur. Order so far as appealed from reversed, with ten dollars costs and disbursements, and proceedings remitted to court below.