
    MACNIFFE v. LUDINGTON.
    
      N. Y. Common Pleas, General Term,
    
    
      January, 1884.
    Action for Services of Attorney.—Services ; employment.— Appeal from District Court to Common Pleas ; REVIEWING EVIDENCE; NEW TRIAL.
    Upon appeal from a judgment rendered in a district court of the city of New York to the Common Pleas, the court may review the evidence and reverse upon the facts.
    In an action by counsel against the party whom he represented, for his services,—Held, that he could not recover because the evidence showed no employment by the party, but only by his attorney.
    
    Appeal from a judgment for the plaintiff entered upon the trial of the action before a justice of a district court of the city of New York.
    Robert E. Macniffe sued Benjamin L. Ludington upon a claim assigned to him for services of James M. Lyddy as attorney for Ludington in a prior action. The main question at issue was whether Lyddy was retained by Ludington, or employed solely by Ludington’s attorney in the action, George W. Lord. The justice who tried the cause, having rendered judgment for the plaintiff, defendant appealed.
    
      'William J. Groo, for defendant, appellant.
    
      James M. Lyddy, for plaintiff, respondent.
    
      
       A party who has an attorney of record cannot ordinarily without his concurrence make a motion by counsel; but an attorney has no implied authority to employ counsel (7 Abb. N. Y. Dig., 1st Supp. p. 190). .
    
   Daly, Ch. J.

This judgment should be reversed. Upon reviewing the evidence, the conclusion is unmistakable, that the professional, services of Lyddy, in the suit of Nason v. Ludington, were voluntarily rendered by him, at the request of and for the benefit of Mr. Lord, the defendant’s attorney, he being, at the time, confined to. his house by illness, and not upon any retainer by the defendant. This is distinctly and positively sworn to, both by Lord, and by the defendant, whilst Lyddy’s account of his retainer by the defendant and of services he rendered is vague, indefinite and in part contradictory. It is especially so, in respect to his services upon the motion for the stay of proceedings. He first testified that he prepared the affidavit and the other papers upon that motion, and when it afterwards appeared, that that affidavit was in the defendant’s handwriting, he admitted that the papers were prepared in the defendant’s office. And so, in respect to the visit to New Jersey. He first testified' that he went to the defendant’s office to inquire where the defendant’s attorney, Lord, lived ; and, afterwards that he did not see the defendant until he, Lyddy, had returned from New Jersey ; and he could not remember whether he went there for the special purpose of the defendant’s suit, or not.

The case for the plaintiff rests solely upon Lyddy’s testimony, and whilst it is of the character stated, the testimony in conflict with it, of Lord and the defendant, is supported by circumstances that are uncontradicted.

The defendant’s statement that Lyddy told him that he was going to make the motion, as a personal favor to Lord, and that he would make an affidavit, that would be a protection to the defendant, against any charge against him for services, and attach it to the motion papers, is corroborated by the affidavit itself in which it is stated that Lyddy made the motion at Lord’s request.

The- defendant swore that Lyddy was an entire stranger to him ; that he had already employed Lord, and Mr. Choate, and being a lawyer, that he “ would have made the motion himself if he had anything to pay for doing it.” That Lyddy had a long conversation with the defendant in which the whole of the case was talked over, and several consultations, also with Nason’s lawyer, for the purpose of effecting a settlement by the defendant paying $1,000, is improbable upon its face, for the defendant at the time had offered to pay three times that amount ($3,000), if the plaintiff would settle, and which was then, a standing offer in the hands of his attorney, a fact that is sworn to by the defendant, and not contradicted.

A part of the services charged for, are interviews and consultations, on Oct. 12, 15 and 17. The defendant swore that he never had any consultations, except that Lyddy asked him about the case “No consultations,” he said, except “How are you getting along, and how will you succeed ? ” and that this was all that there was of the .consultations was not denied by Lyddy, although he afterwards went upon the stand and gave further testimony.

Finally, Lyddy allowed four years and a half to go by without sending any bill to or apprising the defendant of any claim against him for these services ; and when he did, he claimed $150, and when the suit was brought, fixed the amount at $90 a difference of $60 in so small a bill.

The judgment should be reversed.

Yah Hoesen, J., concurred. 
      
       The order entered upon this decison, reversed the judgment appealed from and granted a new trial with costs to abide the event. See Code Civ. Pro. § 3213, as amended by L. 1883, c. 231.
     