Registered Country Home Builders, Inc. v. Lanchantin

In an action against an attorney to recover damages for malpractice, the appeal is from a judgment of the County Court, Rockland County, entered upon the verdict of a jury, in favor of respondent. Judgment reversed and a new trial ordered, with costs to abide the event. The questions of fact have been considered, and a new trial would not be granted on those questions. During the cross-examination of respondent’s present attorney, who testified as a witness in respondent’s behalf, appellant endeavored to show that the attorney’s compensation in the instant action was contingent upon a recovery herein. That proof was held inadmissible on the ground that it related to a privileged communication between attorney and client. We believe such ruling was error requiring a new trial. In our opinion, the terms of the retainer, as to the attorney’s compensation, were not privileged within the meaning of section 353 of the Civil Practice Act (cf. Matter of Myer v. Myer, 189 Misc. 406, affd. 272 App. Div. 814; 97 C. J. S., Witnesses, § 283, subd. f), and the evidence tending to show the interest of the witness should have been allowed. The question as to appellant’s negligence was close, and it may not be said that the error did not affect the verdict or substantially prejudice appellant’s rights (cf. Christensen v. Pittston Stevedoring Corp., 283 App. Div. 1088). Rolan, P. J., Ughetta, Kleinfeld, Christ and Pette, JJ., concur.