Prager v. New Jersey Fid. & Plate Glass Ins. Co. of Newark

• Decision Date: 29 March 1927
• Citation: 245 N.Y. 1,156 N.E. 76
• Parties: PRAGER v. NEW JERSEY FIDELITY & PLATE GLASS INS. CO. OF NEWARK, N. J.
• Court: New York Court of Appeals Court of Appeals

245 N.Y. 1

156 N.E. 76

PRAGER

v.NEW JERSEY FIDELITY & PLATE GLASS INS. CO. OF NEWARK, N. J.

Court of Appeals of New York.

March 29, 1927.

Two actions by Joseph L. Prager against thw New Jersey Fidelity & Plate Glass Insurance Company of Newark, N. J. From a judgment for plaintiff in each case, entered on the report of a referee, defendant appealed to the Appellate Division (217 App. Div. 630, 216 N. Y. S. 400). From a judgment there rendered in each case, modifying and, as modified, affirming the trial court's judgment, plaintiff appeals.

In each case judgment modified, and, as modified, affirmed.

Appeal from Supreme Court, Appellate Division, First Department.

Samuel Seabury and Joseph L. Prager, both of New York City, for appellant.

Lyman A. Spalding, of New York City, for respondent.

CARDOZO, C. J.

The actions are by an attorney against a client to recover the value of professional services.

In action No. 1 the plaintiff sued for $21,930.10, made up of $21,585, which was stated to be the value of the services, and $345.10 disbursements. The latter item was afterwards reduced to $200.90, which made the total $21,729.20. During the pendency of the action, plaintiff served an amended complaint in which he fixed the value of the same services at $52,740.10. The referee gave judgment in plaintiff's favor for $30,500 with disbursements, interest and costs. The Appellate Division reduced the award to $21,729.20, the plaintiff's own estimate of value at the beginning of the action, and gave judgment with costs, but without interest.

In action No. 2 the plaintiff sued for $18,423.73. The referee made an award of $9,500 for services, and $41.96 for disbursements,in all $9,541.96, with interest and costs. The Appellate Division reduced the award for services to $4,500, declined to allow interest, and gave judgment accordingly.

By Civil Practice Act, § 589, subd. 2 (as amended by Laws 1926, c. 725), this court--

‘may review facts found by the Appellate Division, where the Appellate Division, on reversing or modifying a final judgment in an action or a final order in a special proceeding, makes new findings of fact and renders final judgment or a final order thereon.’

[1][2][3] We approve the findings of fact made by the Appellate Division in action No. 1. The sum thereby awarded corresponds to the plaintiff's estimate of the value of his own services, not merely in bills rendered to his client, but in a verified complaint. Neither the bill nor the complaint can have the effect of an estoppel. Williams v. Glenny, 16 N. U. 389; Stryker v. Cassidy, 76 N. Y. 50, 32 Am. St. Rep. 262. None the less, they are admissions made in circumstances precluding the likelihood of haste and inadvertence. As such, they are ‘high evidence’ (Williams v. Glenny, supra) in favor of the client. The significance of the admissions is heightened when comparison is made between the amount of these bills and that of others previously rendered. We conclude that the recovery was properly reduced.

[4] When we pass to action No. 2, the tests of value are less decisive. The compensation to be paid must bear a due proportion to the compensation payable for like services in action No. 1. Maintaining this proportion, we find the sum awarded by the referee too high and that awarded by the Appellate Division too low. We increase the award to the extent of $1,500, and place the value of the services at $6,000.

[5][6][7] The question of interest remains. The general rule is that a claim for legal services, resting on a quantum meruit, draws interest to be computed from the date of the demand. Blackwell v. Finlay, 233 N. Y. 361, 135 N. E. 600. This rule is plainly applicable to the award in action No. 1. There the defendant has been adjudged to be indebted in the precise amount demanded in the bills and in the original complaint. A closer question is involved in action No. 2, where the demand was greatly in excess of the amount determined to be due. We think that, even there, interest is to be added to the amount of the award. This was the ruling in De Carricarti v. Blanco, 121 N. Y. 230, 24 N. E. 284, where the plaintiff, suing for $12,000 as the value of his services, obtained an award of $3,568, to which interest was added from the date of the demand. So in Sweeny v. City of New York, 173 N. Y. 414, 66 N. E. 101, the claim was in excess of $100,000 (page 416), and the award was $79,229.13, yet again interest was added. Cf. Stoddard v. Sagal, 86 Conn. 346, 85 A. 519;De La Rama v. De La Rama, 241 U. S. 154, 159, 36 S. Ct. 518, 60 L. Ed. 932;Spalding v. Mason, 161 U. S. 375, 396, 16 S. Ct. 592, 40 L. Ed. 738;Miller v. Robertson, 266 U. S. 243, 257, 258, 45 S. Ct. 73, 69 L. Ed. 265. There may be distinctions in that respect between actions on the common counts (Van Rensselaer v. Jewett, 2 N. Y. 135, 140,51 Am. Dec. 275; 1 Chitty, Pleading, 341) and actions where a claim for damages is the basis of recovery (Gray v. Central R. R. of N. J., 157 N. Y. 483, 488,52 N. E. 555). Much may be said for a rule of greater uniformity if regard is had to considerations of symmetry and logic. Here, as often, the considerations that have been controlling have been those of policy and justice. Bernhard v. Rochester German Ins. Co., 79 Conn. 388, 65 A. 134,8 Ann. Cas. 298;Tuzzeo v. Am. Bonding Co., 226 N. Y. 171, 179,123 N. E. 142. Distinctions have thus developed under a pressure that is stronger than the impulse for coherence.

While the dispute as to value was going on, the defendant had the benefit of the money, and the plaintiff was without it. Interest must be added if we are to make the plaintiff whole. Van Rensselaer v. Jewett, supra. No doubt, there is difficulty in appraising the value of a lawyer's services as there is difficulty often in appraising the services of others. None the less, the standards of general custom and particular practice are not lacking altogether. Both parties appeal to these standards, the defendant as much as the plaintiff, in arguing that this court should affirm the judgment or reverse it. The defendant could have limited its liability for interest by a common-law tender, or by a payment on account without prejudice to the plaintiff's right to recover the excess. If it chose to keep the money,...