Opinion
June 30, 1947.
Appeal by plaintiff's former attorneys from a resettled order insofar as it denied to them a fair and reasonable counsel fee as a condition upon which plaintiff might have another attorney substituted for them in an action for a separation, brought by plaintiff against her husband. Order modified on the law and the facts by striking from the fourth ordering paragraph the word "denied" and inserting in place thereof the following: "granted to the extent of awarding them an additional counsel fee of $350 as a condition upon which such substitution is granted." As so modified, the order, insofar as appealed from, is affirmed, with $10 costs and disbursements to appellants. The Special Term erroneously concluded that appellants were limited by the provisions in the retainer agreement in seeking compensation for their services, upon their discharge by plaintiff, without fault on their part. The law is to the contrary. The appellants were entitled to recover "* * * on quantum meruit the fair and reasonable value of the services rendered, * * * [and] the contract having been canceled, it could not limit the amount of the recovery * * *." ( Matter of Montgomery, 272 N.Y. 323, 326-327.) Hagarty, Acting P.J., Carswell, Adel, Nolan and Sneed, JJ., concur.