Greenberg v. Bar Steel Const. Corp.

• Decision Date: 05 June 1968
• Citation: 239 N.E.2d 343,292 N.Y.S.2d 404,22 N.Y.2d 210
• Parties: , 239 N.E.2d 343 Max E. GREENBERG et al., Appellants, v. BAR STEEL CONSTRUCTION CORP., Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 404

292 N.Y.S.2d 404

22 N.Y.2d 210, 239 N.E.2d 343

Max E. GREENBERG et al., Appellants, v. BAR STEEL CONSTRUCTION CORP., Respondent.

Court of Appeals of New York.

June 5, 1968.

Emanuel Harris, Murray B. Trayman, Max E. Greenberg, Morton M. Bass in pro. per. and Maurice Shire, New York City, for appellants.

Leonard H. Bernstein, Harry H. Lipsig, New York City, Nicholas M. Pette, Jamaica, and Joseph B. Castleman, New York City, for respondent.

BURKE, Judge.

Plaintiffs are attorneys seeking to recover fees for services rendered pursuant to an alleged retainer agreement, which in fact was a typewritten letter from plaintiff Bass to Cedric Janien, president of defendant Bar Steel. Their complaint alleges that they were retained to both prosecute certain claims for Bar Steel against the Merritt-Chapman & Scott Corp., and to defend against counterclaims ultimately totaling $5,000,000 which would be introduced. This letter recited in part that where 'a claim is settled at any time after trial has commenced or a judgment is procured on that claim, 20% Of such amount as is recovered by such settlement or by such judgment of that claim, shall be paid as and for a fee.' Beneath Bass' signature, Janien inserted that 'There will be only a 2% Charge on the retainage--if it is involved'. Subsequent events disclose that the defendant intended by this to limit plaintiffs' recovery to 2% Where a settlement constituted the satisfaction of an undisputed claim.

Without either initialing this modification or drafting another retainer agreement, plaintiffs commenced an action on behalf of Bar Steel and secured a judgment of $863,540.92 against Merritt-Chapman & Scott. While an appeal was pending, defendant settled with Merritt-Chapman for $707,000, without consulting plaintiffs. This action followed: plaintiffs alleging that they are entitled either to $172,708--20% Of the judgment or, in the alternative, to $141,400--reflecting a similar percentage of the settlement. Defendant contends that plaintiffs' fee is to be based on the final settlement rather than on the judgment amount; and that since it is now conceded by the parties to the initial suit--Bar Steel and Merritt-Chapman--that there was no dispute over $307,050.51 included in the settlement, plaintiffs are only entitled to 2% Of this amount ($6,141.01), and to 20% Of the remainder of the settlement which is.$399,949.49 ($79,989.90). According to defendant's calculations, plaintiffs are entitled to fees totaling $86,130.91. Having paid $86,000 and after placing the balance in escrow, defendant successfully moved at Special Term for partial summary judgment. That order, affirmed by the Appellate Division without opinion, can only be sustained by this court if it clearly appears that no material and triable issue of fact is presented by these pleadings. (Arrow Bldrs. Supply Corp. v. Royal Nat. Bank, 21 N.Y.2d 428, 288 N.Y.S.2d 609, 235 N.E.2d 756; Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404, 165 N.Y.S.2d 498, 504, 144 N.E.2d 387, 392.) Having reviewed this record, we are of the opinion that several triable issues do exist.

At the outset, it should be noted that the court at Special Term determined that plaintiffs, by their actions, agreed to be bound by the retainer agreement as modified. That court then accepted defendant's contention that the fee was to be based on a percentage of the settlement, rather than on a percentage of the judgment. As indicated above, the retainer provided that where 'a claim is settled at any time after trial has commenced or a judgment is procured on that claim, 20% Of such amount as is recovered by such settlement or by such judgment of that claim, shall be paid as and for a fee.' Rephrasing this clause, it provides that, if the claim is settled at any time after trial has commenced, 20% Of this...