Shattuck v. Pennsylvania R. Co.

• Decision Date: 21 March 1931
• Citation: 48 F.2d 346
• Parties: SHATTUCK et al. v. PENNSYLVANIA R. CO.
• Court: U.S. District Court — Western District of New York

48 F.2d 346 (1931)

SHATTUCK et al. v. PENNSYLVANIA R. CO.

District Court, W. D. New York.

March 21, 1931.

Pierre Evans, of Elmira, N. Y., for substituted attorney Levi Ginsburg.

Mortimer A. Sullivan, of Buffalo, N. Y., for discharged attorney Mortimer L. Sullivan.

ADLER, District Judge.

An order of substitution of attorneys has heretofore been granted by consent, and the question of compensating Mr. Sullivan, the attorney who brought the action, was submitted to the court upon the basis of facts contained in the stipulation setting forth the legal services performed by him prior to the substitution.

The action was to recover damages arising from the death of an employee of the defendant company, due to negligent operation of its train. Mr. Sullivan, through an employee in his office, interviewed a witness, obtaining a statement from him tending to show the liability of the defendant company, examined the law relating to the right of one of the plaintiffs to begin the action owing to a common-law marriage after divorce, prepared papers and supervised execution of the petition for appointment of administrators, and procured their appointment by the surrogate, noticed the case for trial, and subsequently attended calendar call, and other services were rendered and slight expense incurred pertaining to details and preparation; while Mr. Ginsburg, who at this time was an associate of Mr. Sullivan, attended the inquest to ascertain the cause of death, visited the scene of the accident, and prepared the complaint.

The services performed were under a contingent fee arrangement entered into between plaintiffs and Mr. Sullivan, whereby the latter was to receive in full for his compensation, 25 per cent. of the amount recovered by judgment or adjustment, and no claim is asserted unless there is a recovery. Subsequently Mr. Sullivan was discharged by plaintiffs and Mr. Ginsburg substituted. No questions of turn-over of papers or misconduct are involved.

The substituted attorney contends that, regardless of the contingent fee contract, the measure of compensation is limited to the reasonable value of the services rendered. It is true that, since the contract was made in this state, the rights of the parties are determinable by its laws; and, in the circumstances, the discharged attorney is only entitled to the reasonable value of the services rendered up to the time of his discharge. Martin v. Camp, 219 N. Y. 170, 114 N. E. 46, L. R. A. 1917F, 402. See Spellman v. Bankers'...