Martucci v. Brooklyn Children's Aid Soc.
| Decision Date | 31 December 1940 |
| Citation | 284 N.Y. 408,31 N.E.2d 506 |
| Parties | MARTUCCI et al. v. BROOKLYN CHILDREN'S AID SOC. et al. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from Supreme Court, Appellate Division, First Department.
Action by Robert Martucci, an infant, and others against the Brooklyn Children's Aid Society and another. From an order of the Appellate Division of the Supreme Court in the First Judicial Department entered June 19, 1940, 259 App.Div. 1003, 20 N.Y.S.2d 695, which affirmed an order of the Special Term providing for the substitution of attorneys for the plaintiff in the place of Desmond T. Barry, and awarding to Desmond T. Barry, as a lien for services, a percentage of the proceeds of any recovery obtained in the action, plaintiffs appeal. A motion for reargument was denied by the Supreme Court, Appellate Division, in 259 App.Div. 1077, 21 N.Y.S.2d 611, and a motion to dismiss appeal was denied by the Court of Appeals in 284 N.Y. 581,29 N.E.2d 663.
Order reversed and matter remitted to the Special Term with directions. Charles A. Loreto and Louis Napolitano, both of New York City, for appellant.
Desmond T. Barry, of New York City, in pro per.
The respondent, having as the appellants' attorney instituted an action to enforce a cause of action of appellants against a third party, had a charging lien upon the cause of action for his services rendered in the action. Judiciary Law, s 475, Consol.Laws, ch. 30; Matter of Heinsheimer, 214 N.Y. 361, 365,108 N.E. 636, Ann.Cas.1916E, 384.
The appellants moved for a substitution of attorneys and asked that the value of respondent's services be determined. Respondent relied on his lien and sought to have the value of his services fixed at $500. An order is before us which fixed respondent's lien at twelve and one-half per cent of any recovery secured or settlement made, but in no case less than $400.
Appellants urge that respondent's lien cannot be fixed on a percentage basis. Respondent is entitled to compensation on the basis of quantum meruit. A percentage allowance does not fall within the description of quantum meruit. The amount of recovery or settlement will depend on factors with some of which respondent has no concern. However, the terms of the retainer contract, now at an end, may be taken into consideration in fixing the value of the lawyer's services. Matter of Tillman, 259 N.Y. 133, 181 N.E. 75;Matter of Montgomery's Estate, 272 N.Y. 323, 6 N.E.2d 40, 109 A.L.R. 669.
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