Weinberg v. Tractenberg

Opinion by

Head, J.,

The plaintiff demands a summary judgment and took this appeal from the order of the court below discharging his rule for such judgment. He alleges in his statement that he is an attorney at law and was retained by the defendant to represent her in the settlement of an estate. He avers further that in order that his client should be represented properly and that her interests should be advanced, he associated with himself other counsel at her instance and request. Whether or not he incurred any financial obligation in so doing, the statement does not declare. He avers that services were performed during a considerablé period of time which were worth $100, and as the defendant, as he alleges, promised to pay him a proper and reasonable fee, he sues to recovér the amount stated.

The defendant, in her affidavit, denies that the plaintiff was generally retained to act for her in the estate referred to, but alleges that his employment was for a specific purpose only. She denies that he has performed the services which, by the terms of her contract, he undertook to perform, and that, as a consequence, she has suffered financial loss. She denies that she ever authorized or requested him to employ other counsel, and in a word, as we view it, she avers a state of facts which, if established by proof, would certainly destroy the plaintiff’s right to recover the sum for which he now seeks to have judgment.

We are of opinion therefore that the learned court below committed no error in discharging the rule for judgment.

The appeal is dismissed at the costs of the appellant without prejudice, etc..