Abramson v. Sperling

Lydon, J. I agree with the conclusion reached by the learned court below but for different reasons. Plaintiff, as executrix, sues defendant, an attorney, for a one-third share of a fee collected by the latter. The claim was held unenforcible below because of supposed illegality. We find nothing illegal in what plaintiff claims to have done but we do not find that any agreement entitling her to recover is either alleged or susceptible of inference from the facts pleaded. Plaintiff alleges, in substance, that she was informed by defendant that her testator, also an attorney at law, had expressed a wish during his last illness that defendant should continue his pending suits at law after his death, and that at defendant’s request she communicated this wish to decedent’s clients and suggested to them that they communicate with defendant. Of course there was nothing wrong or illegal in all this, and that is all that plaintiff p-laima to have done. She says that defendant subsequently “ became substituted ” as attorney in place of decedent in several [815] of the said lawsuits. But she does not say that she had anything to do with effecting such substitution or that she made any bargain for any division of fees. Later, she says, defendant received a fee of $3,842.40 in one of the cases. In separate causes of action she claims one-third of that fee, first, by virtue of an alleged custom between attorneys to share fees in that proportion in any business sent by one to another and, second, because the reasonable value of her services is a sum equal to one-third of the fee. Plaintiff, not being an attorney, does not come within the custom pleaded by her and she pleads no agreement to pay the reasonable value of her services. She must, therefore, rely upon an implied agreement. But we think the facts insufficient, as matter of law, to support such an implication. The services were not rendered in the course of conducting any business or profession nor in the course of administering the estate. Upon the facts pleaded the only permissible inference is that what plaintiff did was done gratuitously. Order modified by allowing plaintiff to serve an amended complaint within ten days after service of order entered hereon, and as modified affirmed, with ten dollars costs and disbursements to respondent. Present — Ltdon, Hammer and Frankenthaler, JJ.; Frankenthaler, J., dissents, with opinion.