Opinion
Argued December 7, 1942
Decided January 21, 1943
Appeal from the Supreme Court, Appellate Division, First Department, DELEHANTY, S.
George Gordon Battle and Thomas Stokes for appellant.
Henry A. Uterhart and Alfred M. Schaffer for Dudley Dupignac, respondent. William Whynman for Homer Folks et al., as executors of Ralph Folks, deceased, respondents.
The facts sustain the findings of the Surrogate. Section 474 of the Judiciary Law (Cons. Laws, ch. 30) relating to attorneys' fees and retainers, must be read in the light of the fact that the relationship of attorney and client was already in existence between this petitioner and her attorneys when this agreement was made. As showing the trust and confidence reposed in these attorneys by petitioner, when the moneys were received she assented to their distribution without taking account of her right to deduct therefrom the taxes and other expenses payable by the estate of which she was a beneficiary. The contingent arrangement exacted from petitioner by these attorneys provided for a payment fourfold greater than that which was paid to the attorney who actually conducted the litigation. The trial consisted in the main only of introducing the written agreements in evidence and requesting the court to construe the same.
The charge of laches against petitioner must be considered in connection with the fact that the relationship of attorney and client continued, and that petitioner was under her attorneys' advice regarding the difficult nature of the litigation, and the necessity of consulting no one else until the relationship of attorney and client was ended and she obtained independent advice. From thenceforth the matter was prosecuted with all reasonable diligence.
The order of the Appellate Division should be reversed, with costs, and the decree of the Surrogate's Court affirmed.
LOUGHRAN, FINCH, RIPPEY, LEWIS, CONWAY and DESMOND, JJ., concur; LEHMAN, Ch. J., taking no part.
Judgment accordingly.