Nostrand v. Frazier

Woodward, J.

(concurring): The plaintiff brings this action upon1 a claim of which he holds an assignment, for professional *644services alleged to have been rendered to | the defendant as an attorney at law by ■one Henry M. Goldberg; The plaintiff’s assignor claims to have been retained by the defendant to bring two certain actions; lor slander, and claims that the services were reasonably worth two hundred dollars, •on which a payment of ten dollars is credited. The defendant denies the liability,, and upon the trial of the action introduced' evidence tending to show that Goldberg' took the two cases upon á contingent fee agreement; that the latter has never performed the services which the defendant directed him to perform, and that'the ten dollars credited upon the account of services ivas for disbursements. Thelearned court below found the facts in favor of the plaintiff and rendered judgment for sixty-five dollars, the defendant appealing. Examining the evidence in the, light or the respondent’s brief,, we áre unable to reach the conclusion of the court below; the weight of evidence is clearly opposed to the finding that the plaintiff’s ■assignor was employed for the purpose of bringing the actions in such a manner as to involve the liability of the defendant. The evidence is overwhelming that Goldberg took the cases upon a contingency, and that he has never prosecuted the same to judgment, though directed tó do so bythe defendant. The evidence in support of the assignment of the claim to the plaintiff is not very convincing that there was a consideration for. the assignment, and the case suggests bad faith in so manjr particulars that in the! interests of justice we conclude that the judgment should be reversed and a new trial ordered. Goodrich, P. J., concurred.