
    Clifford Seasongood and Wm. H. Leonard Edwards, Doing Business Under the Firm Name of Seasongood & Edwards, Appellants, v. Henry L. Prager, Eespondent.
    (Supreme Court, Appellate Term,
    January, 1911.)
    Attorney and client — The relation with the client — Compensation — In general — Refusal of client to perform or abandonment of cause. Where, after an agreement for the prosecution of an action for a contingent fee, the plaintiff instructs his attorney not to proceed without the cooperation of a certain other attorney who does not attend the trial, for which reason as well as the plaintiff’s absence from the trial the complaint is dismissed, the attorney is entitled to recover for the services he has- performed on a quantum meruit.
    
    In such a case, the plaintiff’s instruction to the attorney not to proceed with the trial without the cooperation of the other attorney is a breach of his contract.
    
      Reargumeiít of an appeal from an interlocutory judgment of the City Court of the city of Yew York overruling a demurrer interposed by plaintiffs to a defense and a counterclaim contained in defendant’s answer.
    Franklin H. Mills, for appellants.
    Joseph L. Prager, for respondent.
   Bijur, J.

The action was brought for the reasonable value of certain legal services rendered by plaintiffs to defendant. Plaintiffs had made an agreement with defendant for a contingent fee consisting of a certain percentage of the recovery sought in an action against a third party. When this action came to trial, plaintiffs were instructed by defendant not to proceed with the trial, except with the cooperation of one Palmer, another attorney. Palmer was not present at the trial, and the defendant also absented himself on the advice of some one whom he does not name. The plaintiffs were, therefore, unable to prevent what the answer in the present case terms a default. Subsequently, the defendant moved for a substitution of attorneys and for the vacation of plaintiffs’ lien on his cause of action. The motion was denied.

The question of the plaintiffs’ alleged misconduct in refusing to go on with the case, as pleaded in the defense and in the counterclaim, is shown in the pleading itself to have been necessarily litigated and decided in plaintiffs’ favor on the motion for a substitution of attorneys and to vacate plaintiffs’ lien. That matter, therefore, is res adjudicata.

It appears affirmatively by defendant’s pleadings that a recovery in the other action, on which plaintiffs’ fee was contingent, was prevented by defendant’s absence from the trial. Plaintiffs are, therefore, entitled to recover in this action on a quantum meruit..

Defendant’s own allegation that he instructed plaintiffs not to proceed with the trial without the cooperation of Palmer is a further violation of the agreement for the retention of plaintiffs’ services and for the contingent fee therefor provided.

Apart from these circumstances, it appears that the entire defense and counterclaim are insufficient on the face thereof. While the pleadings charge misconduct in terms against the plaintiffs, the facts set forth in the pleadings themselves disprove the assertion.

Plaintiffs do not claim that the value of their services is res adjudicate but expressly admit that, under the general denial in the answer, this question can he litigated on the trial.

Interlocutory judgment reversed, with costs, and demurrer sustained, with costs, with leave to defendant to amend within six days, upon payment of costs in this court and in the court below.

Seabury and Guy, JJ., concur.

Judgment reversed.  