Williams v. Barkley

• Decision Date: 27 November 1900
• Citation: 165 N.Y. 48,58 N.E. 765
• Parties: WILLIAMS et al. v. BARKLEY et al.
• Court: New York Court of Appeals Court of Appeals

165 N.Y. 48

58 N.E. 765

WILLIAMS et al.

v.BARKLEY et al.

Court of Appeals of New York.

Nov. 27, 1900.

Appeal from supreme court, appellate division, Fourth department.

Action by Stephen K. Williams and others against Orville M. Barkley, impleaded with others. Appeal by permission from an order of the appellate division (65 N. Y. Supp. 356) reversing an order made at special term denying a motion for an order requiring the payment of money deposited in court, and granting such motion on certain conditions. Affirmed.

Parker, C. J., and Martin and Werner, JJ., dissenting.

George Raines and Stephen K. Williams, for appellants.

Frank C. Sargent, for respondents.

VANN, J.

The facts in this protracted controversy between attorneys and client have been stated so often that it is unnecessary to again repeat them. Barkley v. Railroad Co., 35 App. Div. 167,54 N. Y. Supp. 970;In re Barkley, 42 App. Div. 597,59 N. Y. Supp. 742;Id., 161 N. Y. 647, 57 N. E. 1103;Williams v. Barkley, 52 App. Div. 631,65 N. Y. Supp. 356.

The question we are now called upon to determine was certified to us by the court below in the following form, viz.: ‘Does the former adjudication of this court upon the motion to confirm the report of the referee in the case of Barkley v. Railroad Co., and upon the order of this court vacating an injunction in this action (see 42 App. Div. 597,59 N. Y. Supp. 742), determine the rights to or liens of the parties upon the fund in question; and, if so, is it binding upon the plaintiffs, or either of them, in this action?’ The appeal underlying said question is from an order of the appellate division reversing an order of the special term which denied a motion made by Mr. Barkley, the respondent, to require the county treasurer of Monroe county to pay him the sum of $6,240.08, deposited pursuant to an order directing the railroad company, as judgment debtor of Barkley, ot pay him one half of his judgment, and to pay the other half into court, by depositing it with the county treasurer. The object of the court in requiring such deposit was to preserve all possible rights pending an appeal to this court from the order of substitution hereinafter mentioned, brought by Stephen K. and Byron C. Williams, who were the original attorneys for Barkley, and claimed to own a part of the judgment by virtue of a contract with him. When said appeal was dismissed the motion was made to pay over the amount so deposited. The order now appealed from not only reversed the order of the special term denying said motion, but granted the motion upon condition that Mr. Barkley should ‘either deposit the sum of $2,000, or file a bond in that amount,’ in accordance with a previous order of the court. In re Barkley, 42 App. Div. 597,59 N. Y. Supp. 742. It appears from the record that said condition had been complied with before the motion now before us was made.

The ‘former adjudication’ referred to in the question certified was through an order of the appellate division substituting Frank C. Sargent, Esq., as attorney for Mr. Barkley in the action brought by him against the railroad company, in the place of the Messrs. Williams, who were removed. That order confirmed the report of a referee appointed ‘to take evidence and report the same to the special term, with his opinion as to the terms upon which a substitution of attorneys' should ‘be ordered.’ The referee, after hearing the parties, made his report, wherein he laid down the rule that: ‘Upon an application by a party for a substitution of another attorney of record, ordinarily the court will see that the attorney is protected as to his fees; yet, where the attorney's conduct has been improper and neglectful, the court will deny this protection, and direct an unconditional substitution, leaving the attorney to his action for his fees.’ He found that: ‘The conduct of the plaintiff's attorneys has been improper and neglectful, in unreasonably and unwarrantably delaying the prosecution of this action since the rendition of the verdict. * * * While this delay of nearly eleven years in proceeding to enforce the verdict was attributable in part to circumstances beyond the control of the plaintiff's attorneys, it was in the main the result of their deliberate purpose,’ and was without ‘reasonable excuse.’ After quoting from the evidence and discussing the law, the referee continued: ‘These views lead to the conclusion that the delay of the plaintiff's attorneys in prosecuting the action was improper and neglectful, within the rule above referred to. * * * There is no issue here as to the propriety of substituting Mr. Sargent. If a case for substitution is made out, the plaintiff has the right to employ such new attorney as he pleases, and on such terms as he thinks proper. If the views above expressed are correct, it follows that the plaintiff's attorneys by their misconduct and neglect have forfeited their right to the compensation specified in the contract with the plaintiff, which they have put in evidence. They owe their client a reasonable degree of diligence as well as of skill in the conduct of his case. Having failed in their duty in that respect, they are left to their action for their fees and expenses. The question as to what amount of compensation is due to the counsel employed by them is also left to be determined by action.’ His final conclusion was ‘that the motion for a substitution of attorneys should be granted upon’ two conditions, the first of which is not now important, while the second is as follows: ‘The plaintiff should deposit $2,000 in court to the credit of the cause, or file a bond in that sum, with two sufficient sureties, to be approved by a justice of the court, conditioned for the payment of all costs and fees in the action which shall be found due to his original attorneys of record, and for services of counsel employed by them, at such sum as shall be adjudged reasonable compensation therefor.’ The requirement of a bond or deposit was not intended to limit the recovery by action to the sum named, but to furnish some measure of security for what might be recovered, in response to the allegation that Barkley was insolvent. The appellate division confirmed the report of the referee, which it in terms adopted as its own opinion, and an order was entered accordingly. Shortly after the referee made his report, the Messrs. Williams, the attorneys of record, and George and Thomas Raines, known as the Raines Bros., who acted as counsel in the trial of the action against the railroad company, commenced this action against Mr. Barkley to require certain contracts relating to their compensation as attorneys and counsel (one entered into between the Messrs. Williams and Barkley, and the other between the Messrs. Williams and the Raines Bros.) to be specifically performed, and to restrain the railroad company from paying and Mr. Barkley from receiving the one-half of the judgment which the plaintiffs alleged that they owned by virtue of said contracts. A temporary injunction, granted accordingly, was set aside by the appellate division at the same time that the order was made confirming the report of the referee and directing a substitution of attorneys, upon the following ground, as stated in the opinion: ‘This court having reached the conclusion that the report of the referee should be confirmed, in which it is found that the plaintiffs * * * have lost all right, by their misconduct and delay, to have either of the contracts specifically enforced, and that the plaintiffs have lost their lien upon the judgment, it follows that the injunction * * * should not be sustained, restraining the New York Central & Hudson River Railroad Company from paying and Orville M. Barkley from receiving the amount of the judgment.’

A former adjudication is binding upon parties and their privies, and prevents them from litigating over again such matters as were previously at issue between them, and were finally decided by a competent court. If the record of the former proceeding, although made upon a motion, but after an investigation through witnesses examined and cross-examined, shows that the decision could not have been made without deciding the particular matter now in controversy, the latter must be regarded as settled by the previous action of the court, for to litigate the fact anew would impeach the first decision. Dwight v. St. John, 25 N. Y. 203;Demarest v. Darg, 32 N. Y. 281;Brown v. Mayor, etc., 66 N. Y. 385;Smith v. Zalinski, 94 N. Y. 519;Culross v. Gibbons, 130 N. Y. 447, 29 N. E. 839; Wells, Res Adj. § 2; Freem. Judgm. § 325. This is especially true when the controversy involves the conduct of an attorney, as such, because as an officerof the court he is subject to its general authority and control. Hamilton v. Wright, 37 N. Y. 502. The proceeding now asserted as a bar was for a substitution of attorneys, and the order of reference was to take evidence and fix the terms upon which a substitution might be had. The contracts between the parties relative to compensation were put in evidence, and the question of the attorney's negligence was litigated at length, with the result stated. The supreme court could have made the order of substitution subject to the claim of the Messrs. Williams upon the verdict, in accordance with their contract, but it did not do so. On the contrary, it directed a substitution substantially without terms, upon the ground that the Messrs. Williams had by their negligence forfeited the right to enforce their contract. Holmes v. Evans, 129 N. Y. 140 29 N. E. 233. It adjudged that they had been negligent in prosecuting the action against the railroad company, and that by reason of such negligence they had forfeited their right to compensation according to their contract, and were left to recover such compensation by action as they could establish upon a quantum meruit. It was not adjudged that they were entitled to no compensation...