Martin v. Camp

Stapleton, J. (dissenting):

I dissent, upon the authority of Johnson v. Ravitch (113 App. Div. 810). In that case the attorney had an express contract *616for a fixed percentage of any sum recovered by settlement or judgment. The court there affirmed an order fixing the compensation upon the basis of the reasonable value of services actually rendered up to the time the order was made, upon the client’s motion for the substitution of another attorney. This court then said: Every attorney enters into the service of his client subject to the rule that his client may dismiss or supersede him at will; and if he makes a contract for future services to. his client, it is necessarily subject to such rule, and made with full knowledge that he may never perform such service, for the reason that his client may not keep him, and that in that event he will not be paid therefor, but will be entitled to compensation only for the services he has actually rendered.” The prevailing opinion questions the necessity of the observation quoted, proclaims it to be discordant with current judicial thought, and asserts that both the parties voluntarily submitted the controversy to the court. My view is that the observation was essential to the decision; because if the ordinary rule of damage relating to breach of contract prevailed, the court had no power to limit the damage to the reasonable value of the services actually rendered. This it did, and in doing so it decided the only question presented. The last expression of the judicial thought of the highest court is that the relationship of attorney and client, which has been given a peculiar-and confidential character, is subject to principles and rules which do not apply to an ordinary contract.” (Matter of Dunn, 205 N. Y. 398, 405. See, also, Andrewes v. Haas, 160 App. Div. 421.)

I think-the rules and principles, which are peculiar, were stated in Johnson v. Ravitch (supra). Why, in a contract between attorney and client, is the right of the client to break the contract emphasized if the consequences are the same as attend the breach of an ordinary contract ? Does the making of an express contract for compensation, fixed or contingent, destroy the reason for the rule which the courts have formulated with a peculiar relationship for its foundation ? The attorney in Johnson v. Ravitch did not submit his rights voluntarily.. He was haled to court by his client, seeking a substitution and asking for a fixation of his compensation, which *617the attorney had the right to believe would be fixed according to legal principles which would be applied alike either in an action or a special proceeding. Unless we were in error in the case discussed, it is a precise authority for the defendant here.

In Carlisle v. Barnes, No. 1 (102 App. Div. 573), while the chief question litigated was the existence of a contract, it must be conceded that the question of the proper measure of damage on a breach was decided according to principles applicable to the breach of an ordinary contract. We decided Johnson v. Ravitch the other way, presumably with that authority before us. All that it was necessary to decide in Matter of Albers Realty Co. (140 App. Div. 277) was that an attorney’s hen did not attach to a Ghent’s claim until the commencement of a proceeding to enforce or adjudicate it.

In Marsh v. Holbrook (3 Abb. Ct. App. Dec. 176) ah that was decided was that when an attorney did all the work he engaged to do, and his client accepted a satisfactory sum in settlement of his claim, the attorney could recover that proportion of the agreed compensation which the amount accepted in settlement bore to the amount claimed.

Putnam, J., concurred.

Judgment, in so far as appealed from, affirmed, with costs.