Adams v. Legett

• Decision Date: 20 February 1962
• Citation: 15 A.D.2d 856,224 N.Y.S.2d 584
• Parties: Jesse J. ADAMS and Catherine Adams, Respondents, v. Izender LEGETT and Audrey Schapiro, Defendants, Maxwell M. Booxbaum, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 584

224 N.Y.S.2d 584

15 A.D.2d 856

Jesse J. ADAMS and Catherine Adams, Respondents, v. Izender LEGETT and Audrey Schapiro, Defendants, Maxwell M.

Booxbaum, Appellant.

Supreme Court, Appellate Division, Third Department.

Feb. 20, 1962.

Maxwell M. Booxbaum, New York City, for appellant.

Lawrence Levine, Ellenville, for respondents.

Before BERGAN, P. J., and COON, GIBSON, REYNOLDS and TAYLOR, JJ.

MEMORANDUM DECISION.

Appeal from an order of the Supreme Court, Ulster County, on a motion for substitution, fixing the fee of appellant, the outgoing attorney, on a percentage basis plus his actual disbursements and directing that such sums be a lien on any recovery obtained by plaintiffs and ordering appellant to deliver all papers and documents in his possession relevant to the action to the plaintiffs or to the substituted attorney.

Appellant contends that he has the right to have his fee fixed on the basis of quantum meruit. We agree. The cases uniformly hold that a discharged attorney, while he may elect to receive his compensation on a contingent basis (Wojcik v. Miller Bakeries Corp., 2 N.Y.2d 631, 162 N.Y.S.2d 337, 142 N.E.2d 409; Friedman v. Gordon, 260 App.Div. 1023, 23 N.Y.S.2d 757, affd., 285 N.Y. 630, 33 N.E.2d 555), is entitled to have his fee fixed on the basis of quantum meruit should be so choose (Martucci v. Brooklyn Children's Aid Society, 284 N.Y. 408, 31 N.E.2d 506; Matter of Tillman, 259 N.Y. 133, 181 N.E. 75). We do not believe that the record supports respondents' allegation that appellant was discharged for cause. If such were considered to have been the case by the court below appellant would not have been entitled to any compensation rather than that here awarded (Crowley v. Wolf, 281 N.Y. 59, 22 N.E.2d 234, 131 A.L.R. 970).

Appellant urges that this court fix his fee on the basis of the record before us (Hunnewell v. Sanger, 5 A.D.2d 765, 170 N.Y.S.2d 81). We do not find, however, that the present record affords us sufficient information to appraise properly the value of the services rendered by appellant to the advancement of the lawsuit or the extent of his disbursements. In addition, we cannot determine on the basis of the record whether plaintiffs' financial status is such that a proper exercise of discretion would dictate that appellant surrender the papers relevant to the lawsuit in his possession and thus be compelled to forgo his retaining lien without immediate payment of his fee and/or disbursements or...