Opinion
January Term, 1896.
Charles Duane Baker, for the appellant.
William H. Sage, for the respondent.
It is clear that the relation between the parties was that of attorney and client. Mr. Jaques sought the services of a lawyer and not of a mere collecting agent. The receipt plainly indicates the understanding, and all the facts point to the professional relation.
It is equally clear that the attorney was entitled to his percentage only upon the amount collected, and the petitioner was entitled to a settlement on that basis from time to time as collections were made. Otherwise he might have been compelled to wait years for his money, as long, in fact, as the attorney should insist that there was a chance of collecting anything more. It is true that, before the commencement of this proceeding, the attorney voluntarily turned over to the petitioner the notes and collateral, but this in no way alters the latter's right to payment. Conceding that the former had a lien thereon, surrendering it does not affect the petitioner's right to eighty per cent of the sums previously collected, nor does it affect the attorney's right to twenty per cent of such sums as may hereafter be collected by the respondent.
As to the counterclaim, we think the attorney has wholly failed to make out a case. This counterclaim rests upon the unsupported statement of the attorney. We cannot, in this connection, overlook the fact that the attorney's course with regard to the subject of the application was anything but straightforward. His credibility is thus weakened. When, therefore, we find that this counterclaim was not made at a time when, if just, it would have been natural to assert it, that its existence is fully denied, and that such denial is not only credible in inself, but is corroborated in various particulars by disinterested witnesses, we cannot but conclude that it is an afterthought; that it is without merit; and that it is put forward merely to delay and obstruct the respondent in his effort to secure payment of what is clearly due him.
The petitioner was bound to make out a clear case against the attorney ( Matter of Knapp, 85 N.Y. 284), and he has done so. To prevent the exercise of the court's summary power in dealing with such a case, the attorney was required to do something more than make assertions by way of counterclaim. These assertions should at least have been sufficiently supported to call for more formal investigation. The client should not be required, under such circumstances as these, to spend time and money in collecting from the attorney that to which upon his side of the case he is plainly entitled ( Bowling Green Savings Bank v. Todd, 52 N.Y. 489; Waterbury v. Eldridge, 5 N.Y. Supp. 324), and against which there is no well-founded or substantial offset.
The order appealed from should be affirmed, with ten dollars costs and the disbursements of the appeal.
VAN BRUNT, P.J., WILLIAMS, PATTERSON and O'BRIEN, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.