Andrews v. Cain

• Decision Date: 22 June 1978
• Citation: Andrews v. Cain, 62 A.D.2d 612, 406 N.Y.S.2d 168 (N.Y. App. Div. 1978)
• Court: New York Supreme Court — Appellate Division
• Parties: Constance ANDREWS et al., Respondents, v. James CAIN, Appellant.

Page 168

406 N.Y.S.2d 168

62 A.D.2d 612

Constance ANDREWS et al., Respondents, v.James CAIN, Appellant.

Supreme Court, Appellate Division,Third Department.

June 22, 1978.

Hogan & Sarzynski, Binghamton (Edward J. Sarzynski, Binghamton, of counsel), for appellant.

Friedlander, Friedlander & Reizes, Waverly (Leslie N. Reizes, Waverly, of counsel), for respondents.

Before SWEENEY, J. P., and STALEY, LARKIN, MIKOLL and HERLIHY, JJ.

MIKOLL, Justice.

Plaintiffs seek recovery for defendant's negligence in failing to prosecute two negligence cases on their behalf stemming from accidents occurring on October 8, 1965 and June 27, 1967.The parties had executed a retainer agreement after the first accident providing that defendant's fee would be 25% of any settlement, or 331/3% of any sum recovered pursuant to litigation.The same agreement as to fees was orally made between the parties after the second accident.In the only case on the issue, the court in Childs v. Comstock, 69 App.Div. 160, 74 N.Y.S. 643, reduced plaintiff's recovery against his attorney by the 25% contingency fee the defendant would have received had he fulfilled his part of the bargain.The defendant urges on the court that the rule adopted in Childs v. Comstock(supra ) is consonant with the general rule as to the measure of damages in seeking legal redress for a wrong; that is, legal expenses are not awarded to a successful litigant in the prosecution of an action as general or special damages.We find the contrary viewpoint articulated in Duncan v. Lord, 409 F.Supp. 687, to be more logically sound and in keeping with contemporary legal opinions (e. g., Benard v. Walkup, 272 Cal.2d 595, 77 Cal.Rptr. 544, 550-551;Winter v. Brown, 365 A.2d 381, 386(Dist. of Columbia)).We conclude that deducting a hypothetical contingency fee fails to...