[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 18
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 19 The order of the General Term is an emphatic protest against the injustice of the decision of the referee, and we think the error upon which it stands is not cured by the condition imposed upon the plaintiffs. The answer charges a serious breach of duty on their part — the referee substantially sustains the allegation, but, in the opinion of the General Term, he failed to carry out his finding to a legitimate conclusion. He awarded a nominal sum only to the defendant, and the condition imposed by the General Term requires in its stead the allowance of substantial damages. The plaintiffs accede to this, and in one sense the defendant is not aggrieved, for the judgment is thereby diminished in his favor. Yet, we think, it should not stand against his appeal. The sum allowed by the referee is criticised as wholly inadequate, while that fixed by the Supreme Court is much less than the claim of the defendant. There is no fact found upon which an estimate as to the true amount can be made, and the case contains *Page 20 no evidence. Hence a difficulty is presented as the learned court below also found. They concluded that injustice had been done to the defendant, and that the award by the referee should have been more liberal — precisely how much more could not be stated, but it was said to be "at least $500." The uncertainty is thus apparent, and we can find no authority by which that court can determine the amount of unsettled damages; therefore, as the error did, in its opinion, require a reversal of the judgment, it had no alternative, but to grant a new trial in order that the amount of these damages might be fixed by a trial court. (Whitehead v. Kennedy, 69 N.Y. 462.)
The facts actually found furnish abundant materials for another view of this case. The rights of the attorneys corresponded to their duties. They were bound not only by retainer, but by special contract, to serve until the close of the litigation upon which they entered, unless sooner legally discharged. Their contract was an entire one. It may be conceded that for the non-payment of fees they might refuse to act for their client, or might submit the excuse to the court, and be discharged, yet they might also waive his default. In this case, although on the 26th of July, 1870, "they," as the referee says, "refused to be bound by the contract," they continued attorneys of record, and acted in that relation as late as the 2d of February, 1871, when, without the consent or knowledge of their client, but still as his attorneys, they vacated an order theretofore obtained in the cause. That the order so vacated was one in his favor, and they, in vacating it, acted in a manner hostile to him and his interest, cannot alter the fact that what they did was done by them as his attorneys, and could have had no effect, except so done. It was an act in the cause, and the plaintiffs should not be permitted to say that in doing it they were not acting in it, and for their client. If that relation existed at that time, no cause of action was made out by the plaintiffs, for that depended upon the withdrawal of the plaintiffs on the 26th of July, and if the act was wrongful — adverse to their client, and to the advantage of the other side, *Page 21 they could have no right to compensation for any services in the suit. The law does not tolerate prevarication in the service of an attorney, or permit him to use his position as such to the prejudice of the party for whom he professes to act. The referee declares that the plaintiffs not only declined to substitute other attorneys in either of the suits without being first paid or secured," but availed "themselves of the position that their refusal to grant a substitution left them in, as attorneys of record," to destroy the advantage which the defendant, by his own effort and without their aid, had obtained. One cannot, after assuming the relation of attorney to a client, throw it off and resume it at pleasure, and to his client's prejudice, and again discard it to his own advantage. Here then was not only the obligation of a contract, but a duty which the law implied — a continuous one while the relation of attorney and client existed. The duty was violated, not by negligence, but willfully, and under circumstances, which both courts hold entitle the client to indemnity. For services in the Baird suit, therefore, as the case is now before us, the plaintiffs could rightfully recover nothing. They are left in the attitude of wrong-doers, and cannot be permitted to measure the damages resulting from their own wrong. (Chatfield v. Simonson, 92 N.Y. 210.) If, however, the undertaking of the plaintiffs in the two suits is regarded as separable, they might recover for services in the one against Fields, but only according to the contract. Judgment had been entered in that action before the plaintiffs refused to be bound by the agreement, and their damages should have been assessed according to its terms. Upon another trial a different state of facts may be disclosed. Without further reference, therefore, to this claim; upon the grounds before mentioned, we think the appeal must prevail.
The judgment of the General Term, and that entered upon the report of the referee, should be reversed, and a new trial granted, with costs to abide the event.
All concur.
Judgments reversed. *Page 22