Jackson v. Strong
| Decision Date | 11 December 1917 |
| Citation | 118 N.E. 512,222 N.Y. 149 |
| Parties | JACKSON v. STRONG et al. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from Supreme Court, Appellate Division, Fourth Department.
Action by Fred S. Jackson against Charles W. Strong, impleaded with others, From a judgment of the Fourth Department of the Appellate Division of the Supreme Court (170 App. Div. 936,154 N. Y. Supp. 1127) affirming a judgment of the Special Term, entered on the report of a referee in favor of the plaintiff, defendant named appeals. Reversed.
See, also, 91 Misc. Rep. 429,154 N. Y. Supp. 886.
Irving W. Cole, of Buffalo, for appellant.
Wallace Thayer, of Buffalo, for respondent.
The complaint in this action sets forth that the plaintiff and the defendant Strong, who are attorneys at law, entered into a contract to prosecute for their joint benefit a negligence case. One William Simons had been killed in an accident, caused, as it was said, by the carelessness of the International Railway Company.
The plaintiff and Strong agreed, as the complaint shows, to investigate the circumstances of Simons' death and ascertain if his personal representatives had a cause of action against the railway company and to bring suit against the company if it was ascertained that a cause of action existed. They were to bear equally the expenses of the litigation, become partners in the conduct of the case, and share equally in the receipts.
The complaint further sets forth that the suit was brought by Strong as attorney against the railway company, and a verdict of $8,550 was rendered in favor of the personal representatives of the decedent, and that the judgment entered on the verdict was subsequently affirmed at the Appellate Division and in this court; furthermore, that the defendant Strong received from the railway company the amount of the judgment with interest and costs, and that he now repudiates the contract with the plaintiff and refuses, after due demand, to pay over to the plaintiff his share of the recovery.
The defendants Petrie, Fiederspiel, and Thayer are joined as defendants because the plaintiff assigned to each of them a certain undivided part in his share of the judgment against the railway company under his agreement with the defendant Strong. It was subsequently stipulated that the plaintiff should collect and receive whatever sum these defendants might be entitled to.
The plaintiff in his complaint demanded judgment against the defendant Strong for an accounting to determine the amount due to the plaintiff and for the recovery thereof.
The answer of the defendant Strong is a general denial of the allegations of the complaint that the defendant agreed to share with the plaintiff any amount recovered from the railway company, and the answer alleges that the defendant Strong simply employed the plaintiff to assist in the prosecution of the action and agreed to pay him the reasonable value of his services. The other defendants, Petrie, Fiederspiel, and Thayer, answered, setting up their assignments.
The action was referred to a referee to hear, try, and determine the issues, and thereafter the trial before the referee proceeded. There was no application by either party for an amendment of the pleadings. The case was then submitted to the referee.
The referee rendered his report as in an action at law, finding in substance that the plaintiff, at the request of the defendant Strong, performed certain services in prosecuting the action against the railway company to recover damages for the death of Simons, and that the defendant agreed to pay the plaintiff liberally out of the recovery in the event of success in the action, but nothing if the suit was not successful. The referee also found that the prosecution of the case was successful, and that the defendant Strong recovered $4,328.25, and that the value of the plaintiff's services was $1,082, and his traveling expenses were $24.65.
As a conclusion of law the referee found that the plaintiff was entitled to judgment against the defendant Strong for...
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...of awarding him damages. Merry Realty Co. v. Shamokin & Hollis Real Estate Co., 230 N.Y. 316, 324, 130 N.E. 306; Jackson v. Strong, 222 N.Y. 149, 153-154, 118 N.E. 512; Bradley v. Aldrich, 40 N.Y. 504, 511. 'The award of mere compensatory damages, which are almost always unliquidated, is a ......
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