Such v. Bank of State of New York

• Decision Date: 27 February 1903
• Citation: 121 F. 202
• Parties: SUCH v. BANK OF STATE OF NEW YORK.
• Court: U.S. District Court — Southern District of New York

121 F. 202

SUCH v. BANK OF STATE OF NEW YORK.

United States Circuit Court, S.D. New York.

February 27, 1903

Harrison & Byrd, for the motion.

James Parker, opposed.

LACOMBE, Circuit Judge.

It was conceded by both sides on the argument that plaintiff and his attorney had entered into a contract by which the attorney was to prosecute the cause, and in the event of final recovery was to be paid 15 per cent. of the proceeds. By insisting that another attorney shall now be substituted, plaintiff is presumably breading that contract, and in the proper way and at the proper time the attorney will presumably have an opportunity to recover damages for that breach. It would therefore be improper upon this application to fix compensation for services actually rendered to date, upon any considerations of the future course of the litigation. No doubt, upon assessment of damages for breach of contract, the tribunal which disposes of the question will deduct from the amount awarded to the attorney, should he be held entitled to recover, the sum already paid him as retainer, and now to be paid as a condition for order of substitution.

It seems that, for all services to date, $500 is a fair allowance, of which $250 has been paid. Upon payment of the balance, order of substitution will be made.