Opinion
November 6, 1914.
Alexander Gordon, for the appellant.
Henry K. Heyman, for the respondent.
Upon a former appeal ( Matter of Heinsheimer, 159 App. Div. 33) this court affirmed an order declaring the existence of a lien and directing a reference to ascertain its amount.
The appellant cannot again review such order in this court or procure a reargument in the manner here sought. The order which was affirmed on the prior appeal sent the matter to a referee to determine the amount due the attorney, first, under his general retainer; and second, to ascertain the reasonable value of services rendered in the action of Meyer v. Schulte, from February 12, 1910, to December 22, 1910. The appellant does not contend that there was any error in the report of the referee as to the first issue sent to him to determine, but he does insist that the amount due on the general retainer is not the proper subject of a lien, for which reason the court should review and reverse its prior ruling. This question was settled on the former appeal. On the second issue the referee found that the reasonable value of the services rendered by the petitioner in the action referred to was $1,000, and this, we think, is excessive. On February 12, 1910, the case was on the short cause calendar ready for trial. The trial took less than a day and the record on appeal, set out in this record, is twelve printed pages in length. The judgment recovered was $4,176.64. After the petitioner served amendments to the proposed case on appeal the services ended. On the appeal this court struck out an extra allowance of $200 costs. ( Meyer v. Schulte, 148 App. Div. 892. ) This was done upon the theory that the cause was neither difficult nor extraordinary and that, therefore, an extra allowance of costs was unjustified.
In an action in which the issues involved were neither difficult nor extraordinary, the amount involved was so small and the trial occupied such a short time, an allowance of $1,000 as the value of the services rendered by the attorney is excessive. We think $500 would amply compensate the attorney for the services rendered.
On May 27, 1913, the funds realized from the Schulte action were paid to the city chamberlain, to be held by him until it was officially determined to whom the same belonged. The order appealed from directs the payment to the petitioner out of this fund of the sum of $4,096.92, found to be due under his general retainer, with interest at six per cent per annum from February 12, 1910, to the date of the order. The interest upon this fund at the rate of six per cent should have been limited to the day the fund was paid to the city chamberlain, and, therefore, all the interest to which the petitioner was entitled was what was received by the city chamberlain.
The appeal from the order declaring the existence of the lien is, therefore, affirmed, and the balance of the order of the referee modified as stated in this memorandum, with ten dollars costs and disbursements to the appellant.
INGRAHAM, P.J., LAUGHLIN and CLARKE, JJ., concurred; SCOTT, J., dissented, except as to reduction.
Order declaring the existence of lien affirmed and remainder of order of referee modified as stated in opinion, with ten dollars costs and disbursements to appellant. Order to be settled on notice.