(dissenting). I have no quarrel with the proposition that when an attorney and client reach agreement as to the value of the services to be rendered by the attorney, the attorney, upon completion of those services, can recover a fee only in the amount agreed upon, i.e., his remedy is in contract, not quantum meruit. The possibility that there are exceptions to this rule applicable to this case is not the reason for my dissent. I dissent because the majority does not give effect to a prior order which, I contend, established plaintiffs’ right to recover in quantum meruit. In limiting plaintiffs to a contract remedy, the majority, in effect, reverses a prior order from which no appeal was taken, and which, more importantly, is neither argued nor included in the record. Thus, *98even if the order in question can be said to necessarily affect the judgment from which the appeal is taken (see, CPLR 5501 [a] [1]), its omission from the record makes review impossible, and because unreviewable, the possibility, or even probability, that it was incorrectly decided is legally irrelevant. And, to the extent that the majority finds that the record compels the conclusion that the prior order adjudicated a right to recover in contract, to the same extent I would find that the record compels the conclusion that the prior order adjudicated a right to recover in quantum meruit.
The complaint contains two causes of action. The first alleges defendant’s hiring of plaintiffs in April 1978 to perform legal services of a matrimonial nature; plaintiffs’ performance of those services; the rendering of a bill by plaintiffs in April 1982 in the amount of $55,000 for trial-related services; payment by defendant of $1,000 in December 1982 and $3,000 in February 1983; defendant’s hiring of plaintiff in or about June 1983 to perform "additional” services necessitated by an appeal taken by the adverse party in the matrimonial action; an agreement between the parties fixing plaintiffs’ fee for such appellate services in the amount of $6,500; payments by defendant since June 1983 totaling $12,000; and nonpayment by defendant of the balance. The second cause of action alleges plaintiffs’ performance of legal services on behalf of defendant having a "fair and reasonable value” of $100,000. Defendant’s answer denies all of the allegations of the complaint, and contains an affirmative defense of lack of jurisdiction not in issue on this appeal.
At some point after joinder of issue plaintiffs moved for summary judgment, which motion was partially granted on the issue of liability. We know this because plaintiffs represent it to be so in their brief, and also because the record shows that the Trial Judge understood the matter to be an "assessment” "directed by order of [Special Term]”. Neither Special Term’s order, nor the papers underlying it, are in the record. Plaintiffs do quote a portion of the order in their brief, which portion is set out in full in the majority opinion, but I do not find the language quoted helpful in ascertaining whether it was on the first or second cause of action that judgment was granted, and would not, in any event, rely upon a brief to fill in a gap in the record relating to the content of an order.
In due course, presumably pursuant to CPLR 3212 (c) providing for an "immediate trial” on the issue of damages when *99summary judgment is granted on the issue of liability, the case was assigned to a Trial Part. The Trial Judge, viewing the matter before him as an "assessment”, proceeded to take proof as to the reasonable value of the services rendered by plaintiffs. That proof consisted of plaintiffs’ testimony, and the testimony of another attorney claimed to have expert knowledge of local prevailing rates for services rendered by attorneys of plaintiffs’ standing in the matrimonial bar. At the conclusion of the hearing, the Trial Judge rendered an oral decision assessing the various services performed by plaintiffs, and granting judgment in an amount representing the total of those assessments less what he found to be the total of the payments made by defendant on account of the services assessed.
The majority, taking a different view of the matter, does not review the accuracy of the valuations assigned by the trial court to plaintiffs’ services, but instead holds plaintiffs bound by the bill they rendered in April 1982 with respect to their trial services (which bill, presumably, reflected a fee agreement previously reached by the parties), and by the agreement they reached with defendant in June 1983 with respect to the appeal. The judgment awarded by the majority represents the total of these two items, less the amount they find to have been paid by defendant on account. In approaching the matter in this way, the majority takes everybody by surprise. They completely undercut plaintiffs, whose proof at trial proceeded, and whose argument on appeal proceeds, entirely on the assumption that the reasonable value of their services is the measure of their fee. And defendant, for her part, would be the last to consider herself vindicated by the majority’s approach. Defendant’s main contention at trial was that she was misled by plaintiffs into believing that the total amount of their fee would fall somewhere between $5,000 and $10,000, or that plaintiffs were, at the least, ethically lax in not making clear to her at the outset of the attorney-client relationship what the basis of their fee would be; on appeal, defendant’s argument is mainly to the effect that the trial court’s decision is deficient under CPLR 4213 (b) for failing to make findings of fact responsive to those contentions.
Since the order granting partial summary judgment is not in the record, it cannot be known with certainty whether the "assessment” directed therein was addressed to the first cause of action, setting forth a contract theory, or the second cause of action, setting forth a quantum meruit theory. I do think, *100however, that it can be safely said that it was not Special Term’s intention to grant summary judgment on both causes of action. Given the same underlying facts, contract and quantum meruit are inconsistent remedies in that once the existence of an express contract is established by admission of the parties or finding of the court, an action in quantum meruit cannot lie (Jontow v Jontow, 34 AD2d 744; Foster v White & Sons, 244 App Div 368, 371, affd 270 NY 572; Miller v Schloss, 218 NY 400, 406-407 ["A contract cannot be implied in fact where * * * there is an express contract covering the subject-matter involved”]).
Thus, although the complaint purports to state two separate causes of action, one in contract and the other in quantum meruit, in truth, there is only one cause of action for services rendered setting forth two alternative methods for computing damages. In granting partial summary judgment, Special Term determined that plaintiffs are entitled to be compensated for these services; of necessity, it had to also decide how such compensation was to be computed. Otherwise, the immediate Trial Part to which the case was referred for an "assessment” would not have known how to perform that which it was directed to do. It would have been altogether improper for Special Term to grant judgment on liability while leaving it to the immediate Trial Part to decide whether that liability was to be measured in contract or quantum meruit.
The question remains — on which cause of action did Special Term grant judgment? The indications are compelling that it was on the second cause of action for quantum meruit. Attorneys are free to enter into fee agreements with clients (Judiciary Law § 474). Notwithstanding this freedom to contract, the courts, as a matter of public policy, pay particular attention to fee arrangements between attorneys and clients (Jacobson v Sassower, 66 NY2d 991, 993; see, Murray v Waring Hat Mfg. Co., 142 App Div 514). Should a fee dispute arise between an attorney and client, an attorney relying on a fee contract has the burden of showing that it was fair, reasonable, and fully known and understood by the client (Jacobson v Sassower, supra). Therefore, to the extent that it may have been the first cause of action in contract that plaintiffs pressed on their motion for summary judgment, it was incumbent upon Special Term to pass upon the fairness and reasonableness of the contract alleged, if challenged by defendant. Such an inquiry could have found issues of fact warranting a trial. But, if such issues had been found to exist, as the majority believes *101they were, the validity of the contract alleged would have been rendered problematical, and summary judgment holding defendant liable thereon would not have been granted (see, Smitas v Rickett, 102 AD2d 928; Baye v Grindlinger, 78 AD2d 690). In other words, the very fact that Special Term granted judgment on the issue of liability precludes the possibility that the "assessment” it directed was for the purpose of inquiring into whether the bill and contract alleged in the first cause of action was fair, reasonable and fully understood by defendant.
Nor could the assessment have been directed for the purpose of liquidating plaintiffs’ damages on a contract-based cause of action. If indeed it was Special Term’s intention to grant judgment on the contract cause of action, it would have simply made the arithmetic calculations the majority makes, and directed entry of judgment for a sum certain. The only conceivable purpose a trial on the contract cause of action could have served was ascertainment of the exact amount of defendant’s payments on account. But if that were the only issue necessitating a trial, surely Special Term would have framed it, and conserved the energies of all involved. Certainly, neither the parties nor the immediate Trial Part viewed Special Term’s order as so limited.
It follows that the immediate trial directed by Special Term had to have been for the purpose of assessing the reasonable value of plaintiffs’ services, i.e., as a follow-up to a finding of liability on the second cause of action for quantum meruit. Right or wrong, this finding of liability in quantum meruit made law of the case which constrained the immediate Trial Judge and, given the state of the record, constrains us as well. This being so, any promises or statements plaintiffs may have made concerning their fee should be given no legal effect except as some evidence of the value of the services rendered (Matter of Tillman, 259 NY 133, 135; Matter of Montgomery, 272 NY 323; Matter of Goldin, 104 AD2d 890).
Proper review of the judgment appealed from herein calls for an examination of the trial record for the purpose of determining the accuracy of the Trial Part’s assessment of plaintiff’s services. Such a review is precluded by the majority’s holding that plaintiff’s right to compensation sounds in contract, not quantum meruit.
*102Milonas and Rosenberger, JJ., concur with Fein, J. P.; Ellerin and Wallach, JJ., dissent in an opinion by Wallach, J.
Judgment, Supreme Court, New York County, entered on November 12, 1985, modified, on the law and the facts, to award plaintiffs the sum of $45,500, with interest from July 1, 1983, and otherwise affirmed, without costs and without disbursements.