Opinion
January Term, 1902.
Julien T. Davies, for the appellant.
Herman Gottlieb, for the respondent.
On the 12th day of May, 1901, at half-past four in the afternoon, the plaintiff while a passenger on a car owned and operated by the defendant sustained injuries, and on the following day a representative of the plaintiff's attorney called at her house and "requested her to retain Herman Gottlieb as her attorney if she intended to institute suit against the defendant herein." He did not succeed in obtaining from the plaintiff her consent to bring the action, but she referred him to her husband, who appears to have been with her in the car at the time she was injured. The attorney's representative at once called upon the plaintiff's husband, and, after some conversation, in which he informed Mr. Whitesell that he had interviewed his wife and that she had informed him that said Herman Gottlieb had been retained by two other persons who had been injured in the same accident, and requested him to retain the said Herman Gottlieb as attorney in behalf of himself and wife — which statement according to his own affidavit was false — induced him to sign this agreement:
"In consideration of legal services rendered and to be rendered to me by Herman Gottlieb, attorney and counsellor at law of New York city, in and about my claim for damages against New Jersey and Hudson R.R. Ferry Company may be liable for injuries sustained by myself and wife in the accident which occurred on the 12th day of May, 1901, any action which Herman Gottlieb may bring or institute, I, A.S. Whitesell, do hereby agree to give Herman Gottlieb the exclusive right and power to prosecute my said claim for damages, and the said Herman Gottlieb hereby agrees to give me one-half of the net proceeds recovered, and I hereby agree with the said Herman Gottlieb that he shall retain one-half of the net proceeds recovered together with the costs and counsel fees of the action as allowed by the defendant and the court.
"No settlement of this case to be made in or out of court without the consent of both parties hereto.
"In witness whereof I have hereunto set my hand this 13th day of May, 1901. A.S. WHITESELL."
The consideration for the agreement is the legal service "rendered and to be rendered" by the attorney to the plaintiff's husband in and about the husband's claim for damages against the defendant for injuries sustained by the husband and his wife in the accident which occurred on the twelfth of May, and the husband agreed that in any action which the attorney might bring or institute, the husband would give to the attorney the exclusive right and power to prosecute his (the husband's) claim for damages, and the attorney agreed to give the husband one-half of the net proceeds recovered. In this agreement there is no authority to act on behalf of the plaintiff or to bring any action for her.
In explaining this agreement the plaintiff's husband swears that he and his wife were passengers upon this car; that he was "shaken up and at the time thought he might have received injuries, but subsequently felt no bad effects;" that on the following day, Grossman, the attorney's representative, called on the deponent and asked him to allow Mr. Gottlieb to bring an action for him, and that deponent consented to this and signed a paper for that purpose, and that two or three days afterwards he wrote a letter to Mr. Gottlieb in which he stated that he had suffered no substantial injury and that he did not wish an action brought in his name or to take further steps in the matter. Grossman swears that he had some conversation with the plaintiff's husband about bringing an action for the plaintiff; but both the plaintiff and her husband positively swear that they never authorized such an action to be brought. Mr. Gottlieb brought an action for the plaintiff by the service of a summons upon the defendant on the fifteenth day of May, two days after this interview of Grossman's with the plaintiff and her husband, but no complaint was then served. He subsequently, in June, served an unverified complaint upon the defendant's attorney, but that was after the action had been discontinued, and the complaint was returned upon that ground; and that is all that the attorney seems to have done in the matter.
It is quite apparent that the attorney was never authorized to commence an action for the plaintiff. He sent to the plaintiff to obtain authority, but she refused to give it and referred his representative to her husband. The representative went to the husband, making the representation above referred to as to what his wife told him and got authority from him to commence an action in his behalf, but obtained no authority to commence an action for the plaintiff. The representative was careful to get written authority from the husband, and if either the husband or the plaintiff had authorized the attorney to commence an action on behalf of the plaintiff, undoubtedly some written authority such as was obtained from the husband would have been obtained from the wife. Nothing of that kind is claimed. The plaintiff expressly repudiated the attorney's authority to bring this action, and swears that she gave none; and there is nothing but the affidavit of Grossman that states that any action by the wife was ever directly or indirectly authorized or contemplated; and as this is specifically denied by both the husband and the wife, and the attorney is unable to produce the slightest written authority, I think the clear preponderance of evidence is against the claim of the attorney. Even Grossman does not pretend that he ever had an agreement with the wife by which the attorney was to receive one-half or any other portion of the damages that she should recover. According to Grossman's story, there was a simple authority to commence the suit, which was revoked a few days after by the plaintiff's agreeing to discontinue the suit that Gottlieb had commenced in her name. If this were true, he would be entitled to no more than the legal value of his services, which consisted in serving a summons upon the defendant.
The order appealed from first directs the defendant to pay to Herman Gottlieb, the attorney for the plaintiff, one-half of the amount of the settlement effected between the plaintiff and the defendant, besides the costs and disbursements of the action up to the time of the aforesaid settlement, within ten days after service of a copy of the order and notice of entry thereof; and upon a failure on the part of the defendant to pay said sum of money, Herman Gottlieb, the attorney for the plaintiff, was permitted to continue and prosecute this action to judgment and to enforce his lien to the extent of one-half of any recovery obtained therein; and in the event that it should become necessary to prosecute the action to judgment, the order discontinuing the action upon the plaintiff's consent was vacated, and Gottlieb is given ten dollars costs of the motion to abide the event.
Just why one-half of the amount of the settlement was given to Gottlieb is not apparent. In his agreement with the plaintiff's husband he had agreed that the husband should be allowed to receive one-half of what he was to recover; but, as before stated, he had no such agreement with the wife and, so far as appears, up to the time that his authority was repudiated, he did nothing but serve the summons. Both the plaintiff and the defendant expressly deny that the claim had been settled, and allege that the plaintiff has commenced an action in the State of New Jersey, where the accident happened, to recover for the damages that she sustained. So that, if this order is sustained, the defendant has two actions on its hands; one in New Jersey for the benefit of the plaintiff who sustained the injury, and the other in New York for the benefit of this attorney, who has sustained no injury and rendered no service except sending his representative to induce the plaintiff to commence an action, and serving a summons on the defendant. I think the order appealed from, upon the facts, was entirely unjustified. The plaintiff's attorney performed no service, obtained no agreement as to compensation, and was entitled to fifteen dollars costs of the action if he had been authorized to bring the action; but not having been authorized to bring it, he was entitled to no compensation.
The order appealed from is reversed, with ten dollars costs and disbursements, and the motion to vacate the order of discontinuance denied, with ten dollars costs, to be paid by the respondent's attorney personally.
VAN BRUNT, P.J., PATTERSON and HATCH, JJ., concurred; LAUGHLIN, J., dissented.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, to be paid by the respondent's attorney personally.