Opinion
April 15, 1971
Judgment, Supreme Court, New York County, entered on June 4, 1970, in favor of plaintiffs-respondents against defendant-appellant after trial of assessment, unanimously reversed and vacated, on the law, without costs and without disbursements. Order, Supreme Court, New York County, entered on January 16, 1970, unanimously reversed, on the law, and the motion for summary judgment, denied, without costs and without disbursements. Order, Supreme Court, New York County, entered on May 28, 1970, directing entry of judgment after trial in favor of plaintiffs-respondents against defendant-appellant, unanimously reversed and vacated, on the law, without costs and without disbursements. This action, by a law partnership against a client, was pleaded in two causes, the first for "agreed and reasonable * * * services rendered," and the second based upon an account stated. The position taken by defendant in the answer was, inter alia, that the amount paid at the time of retainer sufficed as payment for the services performed and the result accomplished, pleading a specific agreement for compensation, to an extent contingent upon certain happenings with which, it was said, plaintiffs had no connection. The contention in the answer was amplified, together with claims by each side of frustration by the other of accomplishment, in voluminous papers filed upon plaintiffs' motion for summary judgment. Special Term brushed these aside, taking the view that "Plaintiffs demonstrate herein that they were retained to perform legal services and that they performed various legal services" and that "It thus appears that the only issue presented with respect to the first cause of action is whether the services rendered exceed in value the amount of $1,500 admittedly received by plaintiffs." Accordingly, plaintiffs' motion was granted to the extent of declaring defendant's liability and sending to assessment the reasonable value of the services. The law of the case having thus been established, no proof of alleged contract between the parties was permitted to be received upon the trial. As has been indicated, the controversy is replete with disputed issues of fact, and summary judgment should not have been granted. The later proceedings are, of course, completely vitiated by vacatur of the order for summary judgment. Nor, when the trial stage is eventually reached in this litigation, would bifurcation be appropriate, for the nature and extent of the services rendered, the extent of the parties' agreement, and the value of the services are all inextricably intertwind. It is noted that, following the original order for summary judgment and before assessment, defendant filed a notice of appeal therefrom but permitted it to be dismissed for lack of prosecution, appealing anew after final judgment. Plaintiffs contend that, by reason of abandonment of that appeal, defendant is estopped from now pursuing it. We find no merit in this argument, but we nevertheless recognize that, considering the disposition here made, the distinct probability is that, among other economies, four precious days of judicial trial time could have been obviated by prosecution of the original appeal. For this reason, costs and disbursements are denied to the successful appellant.
Concur — Capozzoli, J.P., McGivern, Markewich, Nunez and Kupferman, JJ.