Davis v. New York Cent. & H.R.R. Co.

• Decision Date: 18 April 1922
• Citation: 135 N.E. 277,233 N.Y. 242
• Parties: DAVIS v. NEW YORK CENT. & H. R. R. CO.
• Court: New York Court of Appeals Court of Appeals

233 N.Y. 242

135 N.E. 277

DAVIS

v.NEW YORK CENT. & H. R. R. CO.

Court of Appeals of New York.

April 18, 1922.

Action by Ann. L. Davis, as executrix of Earl Davis, against the New York Central & Hudson River Railroad Company. From a judgment of the Appellate Division (181 App. Div. 228,167 N. Y. Supp. 868), modifying, and, as modified, affirming, a judgment for plaintiff, plaintiff appeals.

Reversed, and judgment of the Trial Term modified and affirmed.

Hogan, J., dissenting.Appeal from Supreme Court, Appellate Division, Fourth Department.

Udelle Bartlett, of Oswego, and Freelon, j. Davis, of Pulaski, for appellant.

Francis E. Cullen, of Watertown, for respondent.

CARDOZO, J.

In September, 1913, Earl Davis lost his life while working in the defendant's service. He left a wife, but no children. Husband and wife had lived apart. The mother was sole legatee and executrix of the will. She retained a lawyer to bring suit against the railroad for causing her son's death. The retainer was on a contingent basis, the lawyer, the receive one-half of the proceeds in the event of a trial and one-third in the event of a settlement before trial. He served a complaint, which the defendant answered. Thereafter the defendant paid $400 to the widow and obtained a release. A supplemental answer pleaded the release in bar. The trial judge instructed the jury, if they found the defendant negligent, to assess the damages as if no release had been given. A verdict of $3,000 was returned. Thereafter, in an accounting proceeding in the Surrogate's Court, a decree was made fixing the fees and expenses of the attorney at $1,620.50, and the funeral expenses at $141, a total of $1,761.50. On proof of this decree, an order was made reducing the verdict of $3,000 to $1,761.50, for which amount judgment was entered with costs. From that judgment, as well as from the decree of the surrogate, the defendant appealed to the Appellate Division, where both judgment and decree were modified. The ruling was that the limit of the attorney's compensation was the taxable costs and 50 per cent. of $400, the sum paid to the widow. The plaintiff is the appellant here.

[1][2][3] In this statutory action (Code Civ. Pro. § 1902, now Decedent Estate Law [Consol. Laws, c. 13] § 130) the executrix, though a necessary, is, none the less, a formal, party. Matter of Meekin v. Brooklyn Heights Railroad Co., 164 N. Y. 145, 149,58 N. E. 50,51 L. R. A. 235, 79 Am. St. Rep. 635;Hamilton v. Erie Railroad Co., 219 N. Y. 343, 350,114 N. E. 399, Ann. Cas. 1918A, 928;Rice v. Postal Telegraph-Cable Co., 174 App. Div. 39,160 N. Y. Supp. 172, affirmed 219 N. Y. 629, 114 N. E. 1081;Stuber v. McEntee, 142 N. Y. 200, 36 N. E. 878;American Railroad Co. of Proto Rico v. Birch, 224 U. S. 547, 32 Sup. Ct. 603, 56 L. Ed. 879. The proceeds of a recovery are held, not as general assets of the estate, but subject to a special trust. The sole beneficiary of the trust was in this instance the widow (Code Civ. Proc. § 1903), who, after action brought, extinguished her beneficial interest by settlement and release. The settlement destroyed the cause of action except in so far as continued life was necessary for the securing to the executrix of rights accruing or accrued. Bruck v. New York Cent. § H. R. Ry. Co., 219 N. Y. 668, 114 N. E. 1061, reversing 165 App. Div. 621,151 N. Y. Supp. 286, on dissenting opinion of Smith, P. J., in the court below; Yelton v. Evansville & I. R. Co., 134 Ind. 414, 418, 419, 33 N. E. 629,21 L. R. A. 158. To that extent, its life endured. The right of the executrix to sue connotes the incidental right to continue a suit begun when loss would otherwise result to trustee or to estate.

In this case, we shall assume, though we are not required to decide, that the defendant might have halted the prosecution of the action by abandoning the right to costs, and offering judgment or in some other appropriate way conceding liability for the fees of the attorney up to notice of the release. The result, moreover, will be the same whether the fees might have been limited to a percentage of the settlement, or should have included such additional amount as the attorney could recover if suing on a quantum meruit (Andrewes v. Haas, 214 N. Y. 255, 108 N. E. 423, 3 A. L. R. 458). The defendant offered none of these things. It pleaded the release in bar, and demanded judgment for the dismissal of the complaint with costs. The plaintiff, if she had yielded to this defense, would have cast her attorney adrift to assert against the defendant in some other proceeding a doubtful and...