
    Matter of the Estate of Carmine D’Adamo, Deceased.
    (Surrogate’s Court, Jefferson County,
    February, 1916.)
    Executors and administrators — amount agreed upon for services of attorney in bringing action for wrongful death of intestate — services — evidence.
    The amount agreed upon between an administrator and his attorney for services in bringing an action to recover for the wrongful death of the intestate, investigating the facts and negotiating a settlement of the action, will be allowed the administrator upon the judicial settlement of his accounts, in the absence of evidence of fraud or that undue advantage was taken of the administrator.
    The testimony of members of the bar in answer to hypothetical questions as to the value of the services of said attorney, that the amount paid him was excessive, is improper and incompetent; otherwise, had the claim been based upon the theory of a quantum meruit.
    
    Proceeding upon the final judicial settlement of the account of an administrator.
    Letters of administration issued upon the estate of above named decedent to Germano P. Baccelli, Italian consular agent, on or about December 12, 1912, were revoked by order of the surrogate dated July 28,1914,
      and letters of administration were issued on that day to Giovanni d’Adamo and Fred W. Mayhew. On the first day of October, 1914, the said Baccelli filed his account and petition for final judicial settlement of his proceedings as such administrator, and thereupon a citation was issued directed to the widow and daughter of decedent residing in Italy, the consul general of Italy and the new administrators, requiring them to attend such settlement on the 4th day of November, 1914.
    The account as filed shows that the administrator Baccelli received on June 9, 1913, the sum of $1,800 in settlement of an action brought by him against the New York Central and Hudson River Railroad Company. That he had paid Countryman, Nellis, DuBois & McDermott, his attorneys, for legal services in investigating facts relative to death of deceased, bringing action and negotiating a settlement of same, $719.19 arid $2.02 disbursements in the action; $1.48 other necessary disbursements and $78 funeral expenses, amounting in all to $800.69, leaving a balance for distribution of $999.31. Later upon the hearing the account was amended by adding two items of interest amounting to $40.81, making the total amount for distribution, $1,041.12.
    The new administrators filed objections to the account as to the item paid for attorney’s fees upon the ground:
    (a) That said Bacelli had no authority or warrant of law to make such payment.
    (b) That said Baccelli was not the legal administrator.
    (c) That said payment was excessive.
    (d) That said Baccelli could not legally bind the estate or services of counsel.
    (e) That Baccelli is personally liable for the value of the services rendered him by his attorney.
    
      Other items were objected to, but the above are the only objections urged upon the trial which was had in February, 1915; the case has only recently been submitted and briefs filed.
    Countryman, Nellis, DuBois & McDermott (F. B. Pitcher, of counsel), for administrator Baccelli.
    Gilbert S. Woolworth, for administrators Mayhew and another.
    D. M. Cosgrove, Special Guardian, etc.
    
      
       Order made pursuant to decision of Court of Appeals in Matter D’Adamio, 212 N. Y. 214.
    
   Atwell, S.

All of the objections raised, except the one (c) that the payment of attorneys’ fees was excessive are sufficiently answered by the provisions of the Code, sections 2555 and 2753.

The former provides that “ the revocation does not affect the validity of any act within the powers conferred by law upon the administrator * * * done by him before the service of the citation, where the other party acted in good faith; or done after the service of the citation and before the entry of the decree where his powers with respect thereto were not suspended by service of the citation * * * and he is not liable for such an act done by him in good faith. ’ ’

The latter section provides that upon the settlement of the accounts of an administrator “ the surrogate must allow to him his just, reasonable and necessary expenses actually paid by him.” No allegation of bad faith or lack of good faith is made. There remains then only the question raised by the objection that the amount paid for attorneys ’ services was excessive. Upon the trial evidence was given upon the theory that the administrator could only be allowed for the value of the services rendered by the attorneys upon a quantum meruit, and expert witnesses were called who testified in answer to hypothetical questions as to the value of such services.

This seems to have been an erroneous theory as the services were rendered pursuant to a general contract existing between the consular agent and his attorney made in 1911, applicable to all cases arising in his jurisdiction, in which he should receive letters of .administration upon the estates of deceased Italian subjects. Morehouse v. Brooklyn H. R. Co., 123 App. Div. 680; affd. 195 N. Y. 537.

The contract was proven by correspondence between the consular agent, Baccelli, and his attorneys covering a period between May 18th and October 11, 1911. These letters show that the compensation agreed upon should be forty per cent of the damages recovered either after trial or upon settlement. The letters comprising such correspondence were stipulated into the case by counsel by stipulation dated December- 22, 1915.

The statute expressly permits an attorney u to regulate the amount of his compensation by agreement with his client, which is unrestrained and unlimited by law, ’ ’ and we cannot see how such an agreement can be interfered with and held illegal until the question has been fully and fairly investigated and the facts relating to the transaction plainly established by a trial.

“ The statute conferred' upon the parties the right to make the contract, and conferred upon the court no authority to make it for them. If, however, upon a proper examination of the appellant’s claim, it shall be found that the agreement between himself and his client was induced by fraud, or that the compensation provided for was so excessive as to evince a purpose to obtain improper or undue advantage, the court may correct any such abuse.” Matter of Fitzsimons, 174 N. Y. 15.

This rule has been upheld in the following cases where contracts upon a contingent basis have been involved: Morehouse v. Brooklyn H. R. R. Co., 185 N. Y. 520; Ransom v. Ransom, 147 App. Div. 835; Morehouse v. Brooklyn H. R. R. Co., 123 id. 680; Ransom v. Cutting, 112 id. 150; affd. 188 N. Y. 447; Weeks v. Gattell, 125 App. Div. 402; Murray v. Waring Hat Mfg. Co., 142 id. 515.

The contestant introduced no proof and there is no evidence that there was any fraud or improper or undue advantage taken of the administrator.

Unless there is evidence of fraud or undue advantage taken of the administrator the court cannot, under the doctrine laid down by the Court of Appeals in Matter of Fitzsimons, supra, alter or change the contract.

The only evidence offered by the contestant was the expert opinion of certain members of the bar that such charge was excessive. That evidence would be proper and competent if the claim for the fees was based upon quantum meruit theory. The rights of the attorneys in the case are based on an express contract. In the language of Morehouse v. Brooklyn H. R. R. Co., 123 App. Div. 680, on the new trial ordered by the Court of Appeals: All of the testimony offered by the defendant consisted in a hypothetical question to a leader of our bar, which did not embrace all of the services detailed by the plaintiff and which asked merely for the value of the services described therein. One very properly may demand a larger compensation if it is to be contingent, not certain. We would not be justified to disturb the finding of fact. (Citing cases.) The client did not discharge his attorney during the litigation so as to relegate the attorney to quantum meruit.” P. 680.

Along the same line the court in Werner v. Knowlton, 107 App. Div. 158, an action to recover for value of professional services fixed by express contract, said: We do not think that an attorney who expressly fixes the rate of compensation with a client, in the absence of some evidence of fraud or overreaching, is compelled to submit the validity and binding force of. his agreement to any such test as this (on the basis of quantum meruit). Section 66 of the Code of Civil Procedure expressly provides that ‘ The compensation of the attorney or counselor for his services is governed by agreement, express or implied, which is not restrained by law ’. If the contention of the counsel for the appellant upon the facts as developed in the case is correct it would be entirely useless for an attorney to make an agreement fixing his compensation. Any agreement which he and his client might make, fixing for the protection of both the value of the sendees to be rendered, would always be subject to revision ánd modification by a court or jury which might entertain a different idea of values.”

In view of these authorities and upon the proofs herein it seems to me the amóunt paid by the administrator to his attorneys must be allowed and objections thereto overruled.

It appearing that the estate is ready for final settlement and distribution I can see no reason why such distribution should not be made at this time as authorized by sections 2555 and 2734 in accordance with section 2725 of the Code of Civil Procedure. The decree may therefore provide for distribution to the next of kin after deducting the expense of the accounting as follows: To Grazia Pasoncchi D’Adamo, widow, one-third5 Chiara D’Adamo, daughter, two-thirds thereof. These parties being Italian subjects residing in Italy, their respective shares may be paid over to Gr. Fara Forni, consul general of the Kingdom of Italy; residing in New York city, for them. Matter of Tartaglio, 12 Misc. Rep. 245; Matter of Davenport, 43 id. 573.

Decreed accordingly.  