Greenberg v. Bar Steel Const. Corp.

• Decision Date: 29 June 1971
• Citation: 323 N.Y.S.2d 193,37 A.D.2d 162
• Parties: MAX E. GREENBERG and Morton M. Bass, Plaintiffs-Respondents, v. BAR STEEL CONSTRUCTION CORPORATION, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 193

323 N.Y.S.2d 193

37 A.D.2d 162

MAX E. GREENBERG and Morton M. Bass, Plaintiffs-Respondents, v. BAR STEEL CONSTRUCTION CORPORATION, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

June 29, 1971.

Joseph P. Napoli, Bayside, of counsel (Harry H. Lipsig, New York City, attorney), for appellant.

Emanuel Harris, New York City, of counsel (Max E. Greenberg, New York City, with him on the brief, Marray B. Trayman, New York City, attorney), for respondents.

Before KUPFERMAN, J.P., and STEUER, TILZER and EAGER, JJ.

PER CURIAM:

The plaintiffs (Greenberg and Bass), who are attorneys, brought this action to recover for legal services rendered to defendant, a corporation, in the prosecution for it of certain claims for moneys allegedly due under improvement contracts with Merritt-Chapman & Scott Corporation. At the close of a lengthy jury trial, the court directed a verdict for the plaintiffs for the full amount claimed in a cause of action wherein it was alleged that the defendant had agreed to pay 'a contingent fee of twenty (20%) per cent of any recovery' from Merritt-Chapman & Scott. Now, following the transcribing of the testimony, a review of the record reveals questions of fact which should have been submitted to the jury and, therefore, a new trial will be required.

It is regrettable that, following this trial lasting several weeks, the trial court did not reserve decision on the plaintiffs' motion for a directed verdict and then submit the case to and take the verdict of the jury. Thereby, the trial court would not have relinquished its prerogative to consider the motion on its merits and could have done so following the taking of the verdict. Had such course been followed, the several weeks of valuable court time probably would not have been wasted.

In determining whether or not the case should be submitted to the jury, the trial court was required to take the view of the evidence most favorable to the defendant and, upon the proofs and the inferences reasonably to be drawn therefrom, to determine whether under the law a verdict may be found for the defendant. The test was not whether a verdict for the defendant would be set aside as contrary to the weight of the evidence, but whether by any rational process the jury could find for the defendant. (See Blum v. Fresh Grown Preserve Corp., 292 N.Y. 241, 246, 54 N.E.2d 809, 811; Woodson v. New York City Housing Auth., 10 N.Y.2d 30, 33, 217 N.Y.S.2d 31, 32, 176 N.E.2d 57, 58; Swensson v. New York, Albany Desp. Co., 309 N.Y. 497, 505, 131 N.E.2d 902, 906; Lubelfeld v. City of New York, 4 N.Y.2d 455, 461, 176 N.Y.S.2d 302, 306, 151 N.E.2d 862, 866; Wearever Upholstery & Furniture Corp. v. Home Ins. Co., 286 App.Div. 93, 95, 141 N.Y.S.2d 107, 109; Schatten v. Vogel, 7 A.D.2d 718, 180 N.Y.S.2d 381; Siegel v. McDonnell & Co., 25 A.D.2d 382, 269 N.Y.S.2d 610.) Applying this test, we conclude that there were questions of fact for the jury.

According to the complaint and bill of particulars, the action is grounded upon the retainer of the Two plaintiffs as attorneys under an agreement to pay to them a 20% Contingent fee, including on the 'retainage' owing by Merritt-Chapman & Scott. It is stated that the agreement was party in writing and partly oral and that the writings relied upon by plaintiffs consist of two letters, one dated April 17, 1961 and the other dated April 28, 1961. The letter of April 17, written by plaintiff Bass to defendant, confirms His retainer by defendant and notes that He has 'retained the services' of Greenberg 'as Special Counsel in the matter'. Although the letter generally provides for the payment of a contingent fee of 20% Of any recovery obtained against Merritt-Chapman & Scott, the defendant, before signing an acceptance of the letter, placed thereon an endorsement stating that: 'There will only be a 2% Charge on the retainage--if it is involved'. The defendant insists that this endorsement represented the understanding between the parties and that its obligation is limited to a fee of 2% Of that portion of the recovery representing the 'retainage * * * involved' in the Merritt-Chapman & Scott litigation. But the trial court, holding that there was no question of fact as to the understanding between the parties, directed judgment for the plaintiffs for 20% Of the total recovery, including on the retained percentages, amounting to $370,000. The plaintiffs insist that they are entitled to the 20% Thereon because the bringing of an action against Merritt-Chapman & Scott was required to recover the same, as well as to recover the further balance alleged to be due defendant, and Merritt-Chapman & Scott had generally contested the recovery by pleading a general denial and by setting up counter-claims for damages for delays and for materials delivered to and appropriated by defendant.

The trial court, in directing the verdict for plaintiffs, held that the defendant was bound by the April 28 letter which states that Greenberg is employed as special counsel under an arrangement whereby, in the event of a trial, Greenberg would receive 13.33% (2/3rds of 20%) of 'retained percentages' where they were 'not conceded amounts'--where 'for any valid reason (they) are not conceded sums * * * then and only in such event shall a fee be due you on such retained percentages' (computed at 2/3rds of 20%). But this particular letter is neither signed by nor addressed to the defendant. It is merely a letter by the plaintiff Bass to the plaintiff Greenberg whereby Bass retains Greenberg as 'special counsel to me.' It does not in itself constitute an agreement by the defendant to retain plaintiffs Bass and Greenberg. Janien, defendant's president, testified that he had not seen or approved the April 28 letter; that the April 17 letter was defendant's only contract in the matter; that the defendant's contract...