
    John H. Starin, App’lt, v. The Mayor, etc., of New York et al., Resp’ts.
    
      (Court of Appeals,
    
    
      Filed June 7,1887.)
    
    1. Attorney—Fees op—Compensation por services.
    Plaintiff’s assignee was employed by the excise commissioners of the city of New York from 1589 to 1863. He commenced 14,915 actions for violation of excise law. The data for drawing the complaints were furnished by the commissioners, and he filled in blank forms already prepared, except as to names and dates. In 8,656 actions the defendants appeared and answered. In . ,054 actions, judgments were taken by default. 1,243 cases were placed on the calendar and remained twelve terms, although after the trial of four or five the judge refused to try any more. There was an understanding that the cases were not to be moved until a test case had been decided by the court of appeals, and they never were moved. The county paid - the disbursements. The attorney had no agreement as to compensation. He expended about $4,000 and received in costs $10,000. In a suit against the city a referee allowed him the taxable costs, viz., $388,-156.41. Held, error, that upon a question of compensation for services performed in an enormous number of cases involving no complicated questions of law, and only the most simple of all questions of fact, taxable costs granted in each case, as a measure of compensation, would make it most grossly excessive.
    2. Same—Rule op damages.
    That under such circumstances the value of such services should be measured as being an employment by the year, judging of such value by considering it with reference to each suit.
    
      Appeal from supreme court, general term, first department.
    
      A. J. Vanderpoel, for app’lt; D. J. Dean, for resp’ts.
   Peckham, J.

The plaintiff sues as assignee of one who was appointed by the excise commissioners of New York, their attorney to prosecute actions for violations of the excise laws in their county. He was appointed such attorney in 1858, but only actively commenced his work in 1859, and. from then until 1863, his whole time, he says, was taken up in this business, but more actively at the commencement of the season when the board would meet. From 1863 his services were so slight that he did not keep a book, and it was not worth making even a memorandum of the amount of costs collected by him. His active-work was thus shown to have been included within about the period of four years. The amount of the work done may be thus summarized: He commenced 14,915 actions for violations of the law by selling liquor without a license. The names of the defendants were reported to him from the commissioners of excise, with the dates of the alleged violations, and he then filled in such names and dates in blank summons and complaints, which required only such names and dates to make a perfect writ and pleading. Five minutes spent in this business was ample to fill out each case, and indorse it, etc. In 8,656 of such actions the defendants appeared, a majority by one attorney, and put in answers, which were simply general denials. In 1,054 of these actions judgments were taken by default, on application to the court, and executions issued thereon. In 1,243 of the actions, notices of trial were given, and they were placed on the calendar, and remained thereon twelve terms, for although after the trial of four or five the judges refused to try any more, and none was tried; and the evidence shows pretty conclusively that they were not necessarily on the calendar, nor did they require any attention, owing to an understanding that they were not to be moved until a test case had been decided by the court of appeals, and they never were moved. The county paid the disbursements for printing, for county clerk’s and for sheriff’s fees. The whole sum disbursed by the attorney for clerk hire, and every other expense, amounted to between $3,000 and $4,000. There was no agreement between the attorney and the board as to compensation. He collected and appropriated to his own use, of costs and penalties in these actions, the sum of $10,000. This is the character of the services performed by the attorney, and their amount has-been thus substantially detailed, and upon this branch there was no contradictory evidence.

The plaintiff, to prove their value, called six witnesses,, one of whom had been one of the commissioners of excise during the time inquired about; and they substantially said that, in their opinions, in the absence of any agreement, the attorney was entitled to be compensated at the rate of the statutory posts, and that the number of the cases would not alter their view of the matter in the least; that, if it was worth that sum for one case, it was for 14,000. One witness seemed to regard the matter much in the same light as if the attorney had discovered a gold mine, and was entitled to the rewards of his good fortune. He thought that, if 200 suits were commenced in one day (in the manner above described, by the mere filling in of a name and a date in blanks left for that purpose), it was worth ten dollars in each suit; and therefore $2,000 a day for that service would be a fair and reasonable charge against the county. He said he looked at the whole thing, “it would only occur once in his life, probably.” At the same time he said that an attorney capable of doing this business could probably have been hired by the year for from $1,500 to $2,000. This he subsequently explained by saying he meant one could be hired for that sum who superadded to his clerical ability a sufficient quantity of character to intrust him with the charge of the papers in the office—not performing the “brain work,” but the mere manufacture of the paper after he had been advised by the counsel in the case. The compensation which this witness would award, including $2,000 per day for the commencement of 200 suits, and $12,000 a month for term fees for cases on the calendar which required no attention, and other things in like proportion, the witness said he regarded as compensation for the attorney, for “him for the moments of leisure in his life spent in the acquiring of sufficient knowledge to carry on and conduct a prosecution successfully through.”

Another witness who estimated the same amount of ten dollars for a term fee in each case, which would amount to $12,000 a month, said such amount was, in his opinion, fair and just,‘even when nothing was done in the causes, they being simply on the calendar and requiring no watching, so long as he had cases enough to make up such total at the specified sum for each. He said, in regard to all the services for which he gave an opinion as to their value, that he did not regard them “as services which involve the question of ability or professional skill,” and that was the reason he gave the answer he did, which was that services of a skilled nature should be compensated more liberally in the case of an experienced lawyer than another, but that for such services as their attorney performed he would maite no difference in the compensation, so far as regarded any reputable member of the bar.

The matter is alluded to only to show what is, indeed, otherwise perfectly plain, that even in the opinion of at least one of plaintiff’s witnesses the services of the attorney were not of a high grade, certainly, of skilled labor. The rest of the evidence for the plaintiff is substantially of a like nature, and based upon the same principles and reasoning, viz.that, however large might be the difference between the taxable costs in all these causes, the amount for which such services could have been obtained by making an agreement with a perfectly reputable and competent attorney in regard to it beforehand, yet, if that precaution happened to have been neglected, such fact was entirely unimportant in forming an opinion as to the value of those services. It is to be gathered that this surprising fact was based upon the belief of the plaintiff’s witnesses that, in the absence of an agreement, the attorney was entitled to be compensated for his services in any and in all cases, no matter how great then number, at the rate of the taxable ■costs in each case. •

The defendants, on their side of the case, called tmrceen witnesses, many of them among the leading members of the bar in New York city, and they one and all declared that while, in the ordinary run of suits of a not very intricate nature, the compensation of an attorney might be reasonably based upon the taxable costs in a case, yet in their judgment, where the cases were of the simplest possible nature, and were of such an enormous number, and the labor involved was so largely reduced to that of mere machinery as is the case under discussion, the compensation under such circumstances, at the rate of taxable costs, was enormously extravagant, and each one gave his opinion as to the value of such services taking it as an employment by the year (as the attorney was appointed annually), and also judging of such value by considering it with reference to each suit.

The difference between the highest amount, as given oy the defendants’ witnesses, and the lowest, as measured by the plaintiff’s witnesses, amounted to the difference between about $40,000 or $45,000 and $313,510. The referee signed a report for the sum last named, with interest, amounting in all (after deducting what the attorney had received) to the sum of $388,156.41, for which sum, with costs, judgment was entered. The defendants appealed, and the general term of the supreme court reversed the judgment, as well upon the facts as the law, and so stated in its order of reversal. The plaintiff then appealed to this court from the order granting a new trial, and gave the usual stipulation.

The order of the general term reversing the judgment entered upon the report of the referee, and granting a new trial, should be affirmed. The most limited construction of our power in reviewing questions of fact, arising, as they do in this case, by a reversal in the general term of the findings of fact by a referee, is broad enough to permit and to compel an affirmance of the general term order. The result arrived at by the referee ought to shock the common sense of every intelligent man. The idea that a lawyer of respectable character could by any possibility earn over $300,000 in the space of four or five years, by services of a legal nature requiring.no more legal ability than was involved in making out a summons and complaint, and taking judgments by default, in these excise cases, is a delusion simply, and any judicial tribunal that should determine it to be a fact would be absurdly at war with the truth and the common and universal experience of mankind.

As I have said, the testimony of plaintiff’s witnesses seems to- have been based upon the assumed law that, if no bargain were made, the attorney was entitled to the taxable costs in every case. As a mere measure of compensation for services as an attorney performed in an ordinary case, or in a very small number of such cases, that rule may be very well, and may furnish under such circumstances, a fair rate of compensation. But upon a question of compensation for services performed in an enormous number of cases involving no complicated questions of law, and only the most simple of all questions of fact, taxable costs granted in each case as a measure of compensation would' make it most grossly excessive. I do not think there is, in truth, any general rule of law that, since the Code, makes the compensation of the attorney necessarily co-extensive with the taxable costs, in the absence of an agreement. The counsel for the plaintiff cites, to prove that there is such a rule, certain cases, and among them Scott v. Elmendorf (12 Johns., 315), and Brady v. Muyor (1 Sandf., 569), and some cases in the supreme court since the Code. The cases just above cited arose under the old fee-bill, and do not touch the question under the Code.

In Rooney v. Railroad (18 N. Y., 368), which was only a question as to an attorney’s lien on a judgment under the Code, Harris, J., said, as a mere expression of an opinion on a subject not decided by the court, that, “in the absence of any ageement on the subject, I suppose the sum recovered by the party as an indemnity for his expenses would be the measure of compensation allowed to the attorney.” Comstock, J., in the same case, said: “It is not important now to determine what may be the implied agreement of the client with his attorney.” There are some cases in the supreme court which say that prima facie the implied agreement is to pay at the rate specified by the statute. I assume this statement to mean that it is in the absence of every other fact which courts might think material in judging what the implied agreement was; and, as thus construed, no fault need be found with it as furnishing, under such circumstances, prima facie evidence of what is the reasonable value of the services. But this court has said substantially what the implication is in case no special agreement was made. In People v. Supervisors of Delaware County (45 N. Y., 196), at page 202, Folger,. J., said: “By the Code (section 303), the measure of such compensation is left to the agreement, express or implied, of the parties. There was no express agreement between the relator and the board of commissioners of excise what should be his compensation if it became a charge against the county. He should be paid, then what his services were reasonably worth,—not according to what they produced to his client, but what such services, in themselves considered, were reasonably worth, looking at the labor, time, talent and skill expended in the bestowal of them. In Van Every v. Adams (42 Supr. Ct., 126), the same rule is laid down, that the attorney, in the absence of an agreement, is entitled to recover what his services' were reasonably worth.

If this explanation of the basis for the opinion of the plaintiff’s witnesses be not accepted, and their testimony is to be construed as holding that the number, simplicity and perfect similarity of cases put in an attorney’s hands by his client should have no weight in determining the principles upon which compensation is to be made, or its amount in each case, then such evidence disregards the general ex ■ perience of men, which teaches all of us that in all dealings between man and man, whether of a mercantile or a professional nature, the mere fact of a large number of precisely similar things sold or services rendered is one of the most important factors in its bearing both upon the price of the commodities sold and the amount of compensation for professional services. A lawyer who does all the busi - business of a solvent client, where the business amounts to a great deal, will, of course, take such fact into account in making up his charges, and to a still greater extent where the services were all of a similar nature, and almost clerical in their character. Every lawyer knows this, and has a right to remember it, whether acting as a judge or referee. Looking at it in this light, the evidence for the plaintiff appears to have been given under a misapprehension of the law, or else in defiance of facts which are known to every intelligent man—lawyer, judge, or layman.

Under such circumstances the evidence on the part of the plaintiff, as to value, appears to1 be worthless, and to be wholly overwhelmed by the evidence given on the part of the- defendants.

. The learned referee says that all the witnesses agree that, in the absence of an agreement, the reasonable and usual charge is. at least, the taxable costs. I have looked through the evidence very carefully, and have been unable to concur in that view On the contrary, there is a singular unanimity of dissent on the part of all the witnesses for .defendants as to the existence of any such rule under the circumstances herein detailed. If the referee were at first inclined to believe that there was any such rule applicable to a case like this, yet, when he saw the enormous proportions which the compensation based thereon would assume, he might well have paused, and made a most thorough review of his opinion as to the existence of any rule which, in the application to the case before him, would lead to so unprecedented an award. In our judgment, based upon the whole case, the evidence was overwhelming in its nature and degree in favor of the contention of the defendants as to the value of the services performed by the plaintiff’s assignor.

The order of the general term, reversing the judgment in favor of plaintiff, and granting a new trial, should, therefore, be affirmed, with costs, and judgment absolute awarded against him upon his stipulation.

All concur.  