
    Wilmot L. Morehouse, Respondent, v. The Brooklyn Heights Railroad Company, Appellant, Impleaded with Jonas Nathan.
    Second Department,
    January 10, 1908.
    Attorney and client — contract for contingent 'fees —. when not unconscionable — when attorney not remitted to quantum meruit.
    Ah attorney may properly demand larger compensation if his fees are not certain but contingent on success.
    A finding that a contract giving an attorney one-half the recovery in case of success was conscionable and lawful and will not be reversed when.the only evidence to the contrary was an expert answer to a hypothetical question which did not embrace all the services rendered by the attorney.
    An attorney having a contract for contingent fees, who has not been discharged by his client during the litigation, is not limited to a recovery on a quantum meruit. ■
    
    Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 27tli day of June, 1907, upon the decision of the court rendered after a trial at the Kings County Special Term.
    
      Charles L. Woody [George D. Yeomans with him on the brief], for the appellant.
    
      Wilmot L. Morehouse, respondent, in person.
   Jenks, J.:

This ease came back for trial after the judgment of the Court of Appeals therein, contained in 185 New York, 520. That court decided that the defense (as to which defendant offered evidence) that" the contract between the plaintiff and his client was unconscionable and, therefore, illegal and void, should have been determined by the trial court, and the court’s failure to find Upon this issue was a mistrial. This appeal is from the judgment on retrial. The court has found that the contract between plaintiff and his client was conscionable, valid and lawful. The court had before it the detailed services of the plaintiff. ■ 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. (Lowery v. Erskine, 113 N. Y. 52.) The client did not discharge his attorney during the litigation so as to relegate the attorney to quantum meruit, as discussed in Roake v. Palmer (119 App. Div. 64, and cases there cited). The retainer expressly provided: And I agree to pay said attorney for their services \ of any amount received in settlement of said claim or action, or judgment recovered, and all costs, allowances, counsel fees and disbursements, said attorney agreeing not to charge me for their services unless said claim is settled and the money therefor recovered.” The Court of Appeals said in this case that the question whether a contract for fifty per cent is conscionable was one of fact, that the mere size of the fee does not render it unconscionable unless it appears from the evidence that it was induced by fraud, or, in view of the nature of the claim, that the compensation provided for was so excessive as to evince a purpose on the part of the attorney to obtain an improper or undue advantage over his client. (Matter of Fitzsimons, 174 N. Y. 15.) ” (See, too, Ransom v. Cutting, 188 N. Y. 447.)

Since the foregoing was written our attention is called to the decision of the Court of Appeals in Matter of Snyder (190 N. Y. 66). The agreement for compensation (fifty per cent) in that case provided that neither party to the agreement should settle any of said litigations without the consent of the other. The client, however, settled the litigation without the consent of the attorney and despite his protest. The settlement money came into court to respond to the lien, and on motion subsequently rqade by the client to withdraw one-half of the sum, the Special Term directed a reference to determine the lien, on the theory that the client by making the settlement'had violated the contract with his attorney ; that the latter was not limited as to compensation by the terms of the agreement, but was entitled to recover on quantum meruit. The Appellate Division reversed the order, holding in effect that the agreement controlled. The. Court of Appeals reversed the Appellate Division and Sustained the Special Term, holding that the settlement was void as against public policy,, and- . that its invalidity rendered' inoperative the provision that the attorney should receive a certain, percentage (the two clauses being part of a single plan), and that, therefore, when the client took advantage of the invalidity of One clause the other could not stand; and .as a.result the attorney might recover on quantum meruit.. , But the case at bar does not rest upon a violation of the .agreement of retainer;. There is'no provision therein against settlement, but the action is under the contract which provided that the attorney should'receive, one-lialf of any ■ amount ■ received in- settlement or judgment recovered. There is the manifest difference between the rights arising'upon-a violation of a con tract or under it.

-The-judgment is affirmed, with costs.

Wood ward,. Hooker, GIaynor and Miller, JJ., concurred.

Judgment affirmed, with costs. 
      
      
         Sic.
      
     
      
       See 119 App. Div. 277.—[Rep.
     