
    Clifford Seasongood and William H. Leonard Edwards, Doing Business under the Firm blame of Seasongood & Edwards, Respondents, v. Henry L. Prager, Appellant.
    First Department
    November 10, 1911.
    Attorney and client — contingent fee •— obligation of attorneys — recovery on quantum meruit — defenses.
    Where attorneys are retained to prosecute an action under a contract for a contingent fee whereby they are to receive nothing if unsuccessful they are bound to continue in the case as long as then- clients request it if they wish to receive compensation for then- services, unless the client is guilty of a breach of the obligations of the contract.
    The fact that the Ghent, through a mistake, fails to appear when the action is called for trial whereupon judgment against him is taken by default, does not justify the attorneys in at once withdrawing from the case and recovering for their services on a quantum meruit.
    
    Where the attorneys do withdraw and sue to recover the value of the services rendered it is error to sustain a demurrer to a defense setting forth the contract for the contingent fee and the steps taken in the litigation.
    
      Appeal by the defendant, Henry L. Prager, from an order of the Appellate Term of the Supreme- Court, entered in the office of the clerk of the county of New York on the 12th day of January, 1-911, reversing an interlocutory judgment of the City Court of the city of New York, which overruled the plaintiffs’ demurrer, to a defense and to.a counterclaim set up in the defendant’s answer. .
    
      Joseph L. Prager, for the appellant.
    
      Franklin H. Mills, for the respondents.
   Ingraham, P. J.:

I agree that the .facts set up as a counterclaim are insufficient and, therefore, tha/t the determination of the City Court that the demurrer to the counterclaim should be sustained should be - affirmed. But I think the facts set up as an affirmative defense, which plaintiffs admit by the demurrer, are sufficient, and the demurrer to the defense as' set up in. the answer should be . overruled. . ,

The action is brought to recover for an attorney’s services upon a quantum meruit. The defense is that the plaintiffs were retained by the defendant to commence an action to recover damages against one Beardsley and the American Bonding Company under a contract for a .contingent fee by which the - plaintiffs were to receive thirty-three and one-third per cent of any sum or sums recovered by the said Beardsley or the American Bonding Company, and in the event of no recovery the' plaintiffs were to receive nothing from the defendant for their services. Under this retainer the plaintiffs, as attorneys for. said defendant, brought an action Which was placed upon the calendar and duly came on for trial. The defendant had employed counsel to assist the plaintiffs in the trial of the case, which was certainly not a breach, of their contract with the plaintiffs. By some mistake, for which the plaintiffs were not responsible, when the case was called for trial, the defendant did not appear. The complaint was, therefore, dismissed. The defendant then requested the plaintiffs to move to open the default, - which the plaintiffs refused tó do, and thereupon withdrew from all further comiection with the case. The plaintiffs having failed to recover, there could be no liability of the defendant under the contract. Under the express provisions of ■ the contract between the plaintiffs and the defendant, and which is admitted by the demurrer, it was agreed that the plaintiffs should receive no compensation for their services in the event that there was no recovery in the action brought by the. plaintiffs as attorneys for the defendant. Thus, by the express contract of employment, there being no recovery, the plaintiffs were not entitled to compensation for their services; and no facts are alleged showing default on the part of the client which would justify the court in refusing to enforce this contract. The fact that the defendant, through a mistake, failed to appear at the time the case was called for trial certainly did not justify the plaintiffs at once withdrawing from the case and then recovering the value of the services rendered, notwithstanding the express provisions of the contract that the payment for their services was contingent upon his recovery. I think, under such a contract, the attorneys aré bound to continue in the case so ■ long as their clients request it, if they expect to receive compensation for their services, unless ■ the client is guilty of a breach of the express' or implied obligation of his contract. From the facts here alleged, I do not think that there was such a breach of the defendant’s contract as justified the plaintiffs in withdrawing from the case and then obtaining a recovery upon a quantum meruit.

It follows that the determination of the Appellate Term, so far as it sustains the demurrer to the counterclaim, should' be affirmed, and so far as it sustains the demurrer to the defense should be reversed and the demurrer to the defense overruled.

McLaughlin, Laughlin, Clarke and Miller, JJ., concurred.

Determination of Appellate Term, so far as it sustains demurrer to counterclaim, affirmed, and so far as it sustains demurrer to defense reversed and the demurrer to the defense overruled. Order to be settled on notice.  