Nacht v. Nathan Mfg. Co. (In re Reisfeld)

• Decision Date: 14 October 1919
• Citation: 124 N.E. 725,227 N.Y. 137
• Parties: In re REISFELD et al. NACHT v. NATHAN MFG. CO., Inc.
• Court: New York Court of Appeals Court of Appeals

227 N.Y. 137

124 N.E. 725

In re REISFELD et al.NACHT

v.NATHAN MFG. CO., Inc.

Court of Appeals of New York.

Oct. 14, 1919.

Appeal from Supreme Court, Appellate Division, First Department.

In the matter of the application of William Reisfeld and Gustave A. Cymberg, copartners doing business under the firm name of Reisfeld & Cymberg, to enforce an attorney's line in the case of Morris Nacht, as administrator, etc., against the Nathan Manufacturing Company, Incorporated. From an order of the Appellate Division of the Supreme Court (187 App. Div. 223,175 N. Y. Supp. 365), modifying, and as modified, affirming an order of the Special Term, the administrator appeals. Order of Appellate Division modified by reducing the lien, and, as modified, affirmed.

McLaughlin, J., dissenting.

Henry Bogert Clark, of New York City, for appellant.

Isidor Enselman, of New York City, for respondents.

CARDOZO, J.

This is a proceeding by attorneys to establish and enforce a lien.

The infant child of Morris and Clara Nacht was run down and killed by an automobile truck in the city of New York. The father retained the petitioners to bring an action for damages. Their compensation was to be 50 per cent. of any recovery by settlement or verdict. They caused the father to be appointed administrator, wrote the owner of the truck a letter of demand for payment, and thereafter served a summons. They had no opportunity to do anything more. The action was settled without their intervention, and $1,000 paid, and divided between the parents. In this proceeding, the attorneys seek to charge the defendant with a lien to the extent of 50 per cent. of the sum recovered through the settlement. The Special Term held that the lien must be restricted to the reasonable value of the services, which was found to be $150. The Appellate Division held that the lien must be measured by the contract, and modified the award accordingly.

[1][2][3][4][5] We think the modification goes too far. The petitioners were dealing with an administrator. The proceeds of the cause of action belonged equally to the father and the mother, Code Civ. Proc. § 1905. Upon his own interest in the cause of action, the father might impose any lien that he pleased. Judiciary Law, § 474; Consol. Laws, c. 30. Upon the interest of his wife, he could not lay a charge beyond the limits of the reasonable. Code Civ. Proc. § 1903; Matter of Atterbury, 222 N. Y. 355, 360, 361,118 N. E. 858. There is evidence justifying a finding that the administrator had ignored that restraint upon his power. The Appellate Division reversed upon the law (Code Civ. Proc. § 1338), and the determination of the Special Term must stand if it has any basis in the facts. By this contract, the half of any settlement, no matter how made or when, was to go to the attorneys. Whether they did much or little or substantially nothing, their reward was to be the same. The result, if the contract stands, is to give them $500 for some preliminary investigation of the accident and the service of a summons. Had the settlement been larger, they would have a claim for even more. We cannot say that the Special Term was under a duty to approve as reasonable a contract leading to such results. The father is bound, because he assented, and there is no finding of mistake or fraud. Judiciary Law, § 474; Matter of Fitzsimons, 174 N. Y. 15, 66 N. E. 554;Morehouse v. B. H. R. R. Co., 185 N. Y. 520, 78 N. E. 179,7 Ann. Cas. 377;Matter of Howell, 215 N. Y. 466, 472,109 N. E. 572, Ann. Cas. 1917A, 527;Boyd v. Daily, 85 App. Div. 581,83 N. Y. Supp. 539;Id., 176 N. Y. 613, 68 N. E. 1114;Elmore v. Johnson, 143 Ill. 513, 32 N. E. 413,21 L. R. A. 366, 36 Am. St. Rep. 401;Cooley v. Miller, 156 Cal. 510, 524, 105 Pac. 981;Taylor v. Bemiss, 110 U. S. 42, 3 Sup. Ct. 441, 28 L. Ed. 64. The mother is free, because she did not assent, and hence the contract must be reasonable when it imposes a charge upon her right. The fee may be made contingent (Lee v. Van Voorhis, 78 Hun, 575, 29 N. Y. Supp. 571;Id., 145 N. Y. 603, 40 N. E. 164); its size may be increased because of the contingency; but none the less the bargain must exhibit a measurable degree of providence in the adjustment of reward to service. If such providence is lacking, the administrator will not bind others, even though he binds himself. The test to be applied should be substantially the same as that applied under section 474 of the Judiciary Law...