Lynde v. Lynde

• Decision Date: 07 July 1902
• Parties: LYNDE v. LYNDE. In re WESTERVELT.
• Court: New Jersey Supreme Court

52 A. 694

64 N.J.E. 736

LYNDE

v. LYNDE.

In re WESTERVELT.

Court of Errors and Appeals of New Jersey.

July 7, 1902.

(Syllabus by the Court.)

Appeal from court of chancery.

Action by Mary W. Lynde against Charles W. Lynde. Petition of Mary W. Lynde for an order on James Westervelt to pay into court moneys received from defendant. Prom an order entered by the court (50 Atl. 659), plaintiff appeals. Reversed.

John M. Dickinson and Edwin Robert Walker, for appellant.

Richard V. Lindabury, for respondent.

PITNEY, J. This is an appeal by Mrs. Lynde from an order made by the court of chancery dismissing a petition filed by her in that court, wherein she prayed that the respondent James Westervelt, who was her solicitor in the main cause, should be required to pay Into court the sum of $38,500, which he had received from the defendant in the cause in settlement of a controversy about alimony, so that out of the said sum a reasonable fee might be fixed and allowed to the solicitor for his services rendered to her, and the balance of the moneys might be paid to Mrs. Lynde.

The learned vice chancellor who heard the matter refused the relief prayed for by Mrs. Lynde, on the ground that the facts shown did not warrant the exercise of the summary power of the court over a solicitor.

The undisputed facts are as follows: In the year 1893 Mrs. Lynde obtained in the court of chancery a decree of divorce a vinculo matrimonii. This decree, through inadvertence in its preparation, made no provision for the allowance of alimony. In the month of January, 1896, Mrs. Lynde for the first time met Westervelt, who was an attorney at law and solicitor in chancery of this state, and was also an attorney and counselor of the state of New York. She employed him to take proceedings in her behalf to recover alimony from her former husband. According to her insistment, no express agreement was made between her and Westervelt as to his compensation. He sets up an alleged agreement for a contingent fee based upon the amount of the recovery. This question will be dealt with hereafter. Whatever may have been the terms of the employment, it appears that on the 11th day of February, 1896, Westervelt as her solicitor filed a petition in the court of chancery, praying that the decree of divorce be opened, and that it be amended by decreeing an allowance of alimony to Mrs. Lynde. To this petition her former husband, Charles W. Lynde, made appearance, and after litigation the court of chancery decided (Lynde v. Lynde, 54 N. J. Eq. 473, 35 Atl. 641) to permit Mrs. Lynde to make application at the foot of the decree for an allowance of alimony. From the order of the chancellor thus made, an appeal was taken, and the order was affirmed by this court. 55 N. J. Eq. 591, 39 Atl. 1114. Thereupon further proceedings were had in the court of chancery, resulting in the making of a decree on December 28, 1897, whereby it was adjudged and decreed that the said Charles W. Lynde should pay to Mrs. Lynde the sum of $7,840 for alimony accrued from the filing of her petition to the date of the decree, a counsel fee of $1,000, and her costs of suit taxed at $136.07, amounting in the aggregate to $8,976.07; and the decree also required him to pay to her thereafter the sum of $80 per week from the date of the decree as permanent alimony. The defendant, Lynde, was a resident of the state of New York. A receiver appointed by the chancellor was unable to obtain possession of any property of his in New Jersey in order to enforce the provisions of the decree. It therefore became necessary to take proceedings in the state of New York to enforce the payment of the accrued alimony mentioned in the decree of December 28, 1897, and to fasten upon Mr. Lynde the liability for alimony thereafter to accrue. For this purpose, Westervelt began an action in the supreme court of New York, which, after trial, resulted in a money judgment in Mrs. Lynde's favor against her former husband for the amount of the alimony, counsel fee, and costs specified in the New Jersey decree, and also for alimony at $80 per week from the date of that decree until the entry of judgment in the New York suit, which was in the month of January, 1809. The money judgment amounted, with costs, to $14,896.03. The same judgment directed the defendant to pay alimony to Mrs. Lynde thereafter at the rate of $80 per week. On appeal from that judgment by the defendant, the appellate division of the supreme court of the state of New York modified the judgment by reducing the amount of the recovery to the sum of $8,840, with interest and costs, and by abrogating the equitable relief. Lynde v. Lynde, 41 N. Y. App. Div. 280, 58 N. Y. Supp. 567.

Thereupon Westervelt instituted three additional actions in the supreme court of New York, in each of which the relief asked was a money judgment for sundry installments of alimony that had fallen due since the decree of December 28, 1897. About the same time, both parties appealed from the decision of the appellate division to the court of appeals, and that court, in the month of April, 1900, affirmed the judgment of the appellate division in all respects. Lynde v. Lynde, 162 N. Y. 405, 56 N. E. 979, 48 L. R. A. 679, 76 Am. St. Rep. 332. Thereupon each party sued out a writ of error from the United States supreme court, and in that court the judgment of the New York court of appeals was affirmed. Lynde v. Lynde, 181 U. S. 183, 21 Sup. Ct. 555, 45 L. Ed. 810. This decision was rendered April 15, 1901. Shortly thereafter, a fifth action was commenced by Westervelt for Mrs. Lynde, against her former husband, in the state of New York. Its purpose does not appear, but presumably it was intended to recover an additional installment of alimony. During the months of May, June, and July, 1901, negotiations for settlement were in progress, which finally reached a conclusion on the 12th day of July. It was closed by Westervelt with the opposing attorneys in Mrs. Lynde's absence, but with her consent so far as the terms of settlement were concerned. In the settlement, Westervelt received Charles W. Lynde's check for $38,500, payable to Mrs. Lynde's order, and also his note to her order for $2,500, payable in eight months upon condition that she should, if required, make deposition in court concerning a fact which by the parties was considered material in the settlement. For this consideration, Mrs. Lynde released her husband from "all claims against him for or on account of any alimony or maintenance, past or future"; the New Jersey decree of December 28, 1897, and the New York judgment were both satisfied of record; and all pending actions were discontinued. It should be observed, in passing, that the New York judgment, as modified on appeal, was for only $8,840, besides costs, and represented the alimony and counsel fee adjudged due to Mrs. Lynde by the New Jersey decree. The residue of the $41,000 was paid or agreed to be paid by Charles W. Lynde for Mrs. Lynde's release of her pending actions for alimony from December 28, 1897, to July 12, 1901, and of her claim for future alimony.

As soon as the settlement was closed, Westervelt indorsed the $38,500 check in Mrs. Lynde's name, and deposited it to the credit of his own account in bank. This indorsement was made under a power of attorney that Mrs. Lynde had give him on the same day, in anticipation of the settlement. Whether he had a right to use the power of attorney for this purpose is one of the questions arising in the present inquiry. Having thus obtained possession of the $38,500, Westervelt notified Mrs. Lynde by letter that the settlement had been closed at $41,000 (this, of course, included the $2,500 note), and that her share would be about $19,000; promising to send a statement, and forward her share at an early day. This notification brought Mrs. Lynde to his office, accompanied by one of her present counsel, and a somewhat heated interview took place, during which she strenuously objected to the charges proposed to be made by Westervelt. A few days later he sent her by mail a statement made up entirely in accordance with his own insistment, charging her $15,000 as his own fee for professional services, $4,900 for fees of Mr. George H. Bruce and Messrs. Gayley & Fleming, who had been employed as counsel in the litigation, and the further sum of $2,513.21 claimed to be due to Westervelt for taxed costs and disbursements; the charges amounting, in all, to $22,413.21, and showing a balance due from him to her, according to his own contention, amounting to $16,086.79. For the latter amount, Westervelt sent her his check made out to her order, on the face of which were written the words, "In full of all claims in Re Lynde v. Lynde or otherwise." At the same time he sent her the conditional note for $2,500 signed by her husband.

Mrs. Lynde refused to accept this check and note as payment in full from Westervelt, and thereupon filed her petition in the court of chancery, invoking the aid of that court against him. This petition sets forth with some particularity the transactions alleged to have taken place between her and Westervelt, and prays that the money received by him as above mentioned may be forthwith paid into court to await the further order of the court; that out of that money a just and reasonable fee may be fixed and allowed to him for his services; and that the balance of the moneys so received may be paid to her. The petition is verified by her affidavit, and contains charges of improper and oppressive conduct on the part of Westervelt in the following respects, viz.: (a) Improper conduct in securing possession of the money paid by Lynde upon the settlement; the averment being that, in anticipation of the settlement, Westervelt had induced her to give him a general power of attorney to Indorse checks, by false representations as to the purpose for which he intended to use It; (b) that Westervelt, on obtaining...