
    Edward N. Dickerson, Edwin H. Brown, Louis C. Raegener and Leo J. Matty, Composing the Law Firm of Dickerson, Brown, Raegener & Matty, Respondents, v. The Mashek Engineering Company, Appellant.
    (Supreme Court, Appellate Term, First Department,
    April, 1912.)
    Attorney and client —• the, relation with the client — duties and liabilities of attorney to client — negotiable instruments.
    A letter dated September 9, 1910, from plaintiffs to defendant insisting upon the payment of certain notes given for past services as attorneys in an interference proceeding in a patent case and security for future services, stated that the printed testimony must be filed in the patent office not less than ten days before October 19, 1910. While defendant was in default under the rules of the patent office which required that the testimony be filed not less than twenty days before the date of final hearing, it by promise of payment persuaded plaintiffs to agree to go on with the case and they made several motions which were denied and filed their final brief without having the printed testimony before the patent office. In an action upon the notes, held:
    That the default in filing the testimony was due to plaintiffs’ error and they could not recover for services rendered on the motion to open the default or subsequently; that such services were rendered to avoid the consequences of their own error and, so far as they consisted in submitting the case, were valueless. ”
    Evidence considered, and held insufficient to sustain a claim that the real cause of defendant’s default in printing the record was its inability to pay the bill therefor.
    Appeal by defendant from a judgment in favor of plaintiffs for $48-9.55 and 'dismissing the defendant’s counterclaim, entered in the Municipal Court of the city of Few York, borough of .Manhattan, fifth district, after trial by a judge without a jury.
    L. B. Hasbrouck (Selden Bacon, of counsel), for appellant.
    Frank Trenholm, for respondents.
   Burnt, J.

Plaintiffs were acting as attorneys-at-law for defendant in certain patent litigation in the patent office, known as “ interference proceedings..” The present suit is to recover for services rendered (except as to thirty-five dollars) in and about opening defendant’s default, and making a .final argument in the proceeding. Defendant disputes the liability for such services on the ground that they were rendered necessary solely by reason of plaintiffs’ neglect. The counterclaim is for fees paid by defendant to new attorneys for services in obtaining relief from the consequences of plaintiffs’ neglect.

In August, 1910, the defendant had become liable to plaintiffs on notes for $1,300 given for past services, having already paid them over $3,000 in cash, and plaintiffs were pressing for payment of the notes. In the interference proceeding defendant’s testimony had been put into the form of printer’s proofs delivered to the plaintiffs for correction. On September sixth, plaintiffs brought suit against the defendant on the notes for $1,300. On September ninth, plaintiffs wrote defendant insisting on the payment of the notes and the giving of security for future services, and saying that the printed testimony must be “ filed in the Patent Office not less than ten days before October 19th, 19.10.” On October fourth, defendant called at plaintiffs’ office and, by promises of payment, persuaded plaintiffs to agree to go on with the case. At that time also 'the proofs were still uncorrected in "plaintiffs’ office, but defendant was already in default because, as a matter of fact, the rules of the patent office required the printed testimony to be filed not less than twenty days before the date of the. final hearing instead of ten days, as' stated by plaintiffs in their letter. Plaintiffs forthwith made various motions to open the default, for extensions of time in which to file the "testimony, and for leave to have the case submitted on the typewritten copy of the testimony — all of which motions were denied. They' . eventually wrote and presented their final brief on the proceeding, without having defendant’s testimony before the patent office. The final proceeding was determined adversely to the defendant.

On this state of facts, as detailed- in the evidence, it is plain that the defense to plaintiffs’ claim is good; that defendant was ■ misled hy plaintiffs’ error as to the date when the printed testimony was required to be filed in the patent office; and that plaintiffs’ services, so far as they relate to opening this default, cannot, in the eye of the law, be regarded as rendered at defendant’s request, but, on the contrary, were properly rendered by plaintiffs to avoid the consequences of their own error; and, so far as they consist in submitting the case without the testimony, they were valueless by reason, of the same error.

In reply to the defense of plaintiffs’ negligence, plaintiffs claim that the error in their letter was not the cause of the default in the patent office, but that- the real causé was that the defendant was so financially embarrassed that it could not pay for the printing of the record. To support this claim, they offer extracts from the affidavits of defendant’s president, submitted on the several motions to open the default. Defendant’s president, however, testifies, without contradiction, that these affidavits were suggested, framed and submitted by plaintiffs themselves, and that, so far as they allege defendant’s inability to pay for the record as a cause of the default, that entire idea was suggested by plaintiffs, and that the witness was induced to verify the affidavit only by the argument that since he could not pay the plaintiff's’ fees, which they said should have precedence, he might well, state that he could not pay the printer’s bill at that time. This reasonable explanation of the witness, to my mind, disposed substantially of the value of his affidavit to plaintiffs as an admission. But, even taken' at its face value, the admission falls far short of a statement that the default was due to defendant and not to-plaintiffs. The question is not whether defendant was or was not able to pay the printer (only some $130) at that time, but whether it was able to procure the printed testimony. It does not follow from inability to make a cash payment, that the printer, if the facts had been laid before him (having already set the entire testimony up in type), would have declined to print it without such cash payment; all the circiiHistances of the case,- as disclosed in the record, indicate the very contrary to my mind as the probable state of affairs.

Any reference to this vital phase of the controversy was carefully avoided by plaintiffs in the affidavits which they prepared to be signed by defendant’s president. And, indeed, it is significant to find in these affidavits the statement that defendant did not think it-was honorable to permit the printer to finish the printing when its officers knew that they could not, at that time, pay the printer therefor. The disingenuousness of the excuse was recognized by the patent office which declined to open the default at that "time; but promptly granted relief when defendant’s new attorney presented the actual state of facts.

Plaintiffs have failed to sustain the burden of proof that their services sued for were rendered at the request of the defendant and were worth the amount claimed. They have not negatived the palpable inference that their services were the result of their own default, by any demonstration, sufficiently distinct to be cognizable, that the defendant would even probably not have been able to procure the record to be printed on time. See Rothmiller v. Stein, 143 N. Y. 581; Colorado Coal Co. v. United States, 123 U. S. 307. Indeed, as the record stands, I think that the dismissal of defendant’s counterclaim was equally erroneous with the granting of plaintiffs’ prayer for judgment.

There are one or two exceptions taken by plaintiffs to the admission or exclusion, respectively, of testimony. The matters involved are of so small importance as not in anywise to affect the result. The parties are to be commended for the liberal spirit in which the case was. tried, resulting as I think, without injury to either party, in the presentation of all the facts to the court.

Guy, J., concurs; 'Seabury, J., concurs in result.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  