Opinion
November Term, 1901.
Felix Jellenik, for the appellant.
Thomas J. O'Neill, for the respondent.
Royal S. Crane was attorney of record for the plaintiff in an action in the Supreme Court brought to recover damages for seduction under a promise of marriage. The defendant Leroy B. Crane is also an attorney and was a brother of Royal S. Crane. The plaintiff claims that Leroy B. and Royal S. were partners, and, as such, equally interested in said action, and that they employed him as counsel to manage, conduct and try the same. This action was originally brought against them for the services which the plaintiff rendered in the seduction action. Royal S. Crane died after the commencement of the action and, by order of the court, it was continued against appellant as surviving partner. The trial court construed the complaint, in the light of plaintiff's testimony, as an action on a quantum meruit, and the case was tried and submitted to the jury upon that theory. Just as the action for seduction was being brought to trial it was settled for $15,000, and, pursuant to a contract between the plaintiff therein and her attorney of record, by which he was to receive one-half of the recovery or amount paid in settlement, the sum of $7,500 was deducted and $7,500 paid to the plaintiff therein as her share. The $7,500 so deducted was equally divided between Leroy B. and Royal S. Crane, the former claiming, however, that the amount received by him was to apply on an indebtedness owing to his brother. The evidence offered on behalf of plaintiff tending to show the existence of the partnership between appellant and his brother was sufficient to take the case to the jury upon that issue.
Upon the trial plaintiff gave evidence of the nature and extent of the services rendered by him, tending to show that he was to receive nothing for his services unless the plaintiff was successful in the action. Two attorneys were called as experts for plaintiff on the value of his services and, in answer to a hypothetical question, gave their opinion as to the fair and reasonable value of the services rendered by him. This hypothetical question, after reciting at length the nature and extent of the services rendered and the amount received on the settlement of the action and the amount deducted for the services of the attorney of record, ended with the following clause: "And, assuming that the compensation of the lawyer as so employed was entirely speculative and dependent upon success, what, in your opinion, would be the fair and reasonable value of the services as stated in that hypothetical question?"
When this question was propounded to the first witness defendant's counsel objected upon the ground, among others, that it recited facts which were not germane to the services upon which the witness was asked to pass, and that it assumes a number of facts not essential to the determination of the value of the services rendered as stated, and thereupon addressing the court, said, "Your Honor has already stated that the question of speculative element is not germane to this question," to which the court replied, "I did not so state. He has now remedied the vice which I found in the former question and I will admit this question; it is only a matter of opinion anyway." Defendant's counsel thereupon excepted, and the witness answered that a charge of fifty per cent of the amount received by the lawyers who retained the counsel would be a fair and reasonable charge for the services and added, "I base that, I might say, principally on the fact that the payment was entirely speculative, very largely on that fact."
When the hypothetical question was propounded to the second witness defendant's counsel objected upon the same grounds and upon the further ground "that under the pleadings and the proof the question is solely directed to the reasonable value of the services, or can only be directed to the reasonable value of the services rendered without an element of speculation in it." This objection was overruled, and defendants' counsel excepted, and the witness answered from one-half to two-thirds of the fee received by the attorney.
On the record before us the question presented for determination was, what was the fair and reasonable value of the services actually rendered, in view of the nature and importance of the litigation, the standing of the attorney in his profession "for learning, skill and proficiency," and of the importance to the client of the result, and such value could not be augmented by the fact that plaintiff's services were to be performed gratuitously in the event that the action was not successful. ( Randall v. Packard, 142 N.Y. 47, 56; Harland v. Lilienthal, 53 id. 438; Walbridge v. Barrett, 118 Mich. 433; Robbins v. Harvey, 5 Conn. 335; Middleton v. Bankers' Merchants' Tel. Co., 32 Fed. Rep. 524.)
It, therefore, follows that the court erred in not excluding from the hypothetical question the contingent element of the employment, and it is manifest from the nature of the answers given by the witnesses that the error was prejudicial to the appellant.
The judgment and order appealed from should be reversed, and a new trial granted, with costs to appellant to abide the event.
VAN BRUNT, P.J., PATTERSON, INGRAHAM and HATCH, JJ., concurred.
Judgment and order reversed, new trial ordered, costs to appellant to abide event.