
    Edward H. Murphy, Appellant, v. Henry L. Davis, as Guardian, etc., of George Davis, Jr., and Sarah E. Davis, Respondent, Impleaded with Edward M. Davis.
    
      Attorney and client — assignment by a client of a claim against Ms gua/rdian,—collusive settlement between the client and the guardian.
    
    A complaint in an action set forth an agreement in writing by which, after majority, a person duly assigned to an attorney a percentage of a claim which he had against his' former guardian, in consideration of the prosecution by the attorney of the claim against the guardian, and also against such other persons as it might be advantageous to prosecute, and also contained allegations, sustained by some proof made upon the trial of the action, of the existence of the claim and of some of the services having been rendered, accompanied by a statement that the defendant and the guardian had made a collusive settlement in order to defeat the claim of the attorney “ as provided in said agreement,” and that, inasmuch as the guardian had filed no account, the attorney was ' unable to state the amount to which he was entitled, and finally demanded that the guardian account.
    
      Held, that the complaint stated, as between the attorney and his client, an enforcible equitable cause of action, and that a dismissal of the complaint was not j ustified ;
    That the question as to the amount of the recovery to which the attorney might be entitled for his services, should be considered upon a new trial.
    
      Appeal by the. plaintiff, Edward PI. Murphy, from a judgment of the Supreme Court in.favor of the defendant Henry L. Davis, as guardian, etc., of George Davis, Jr., and Sarah Davis, entered in the office of the clerk of. the county of Hew York; on the 15th day of 1896, upon the decision of the. court rendered after a trial at. the Hew.York Special Term'dismissing'his complaint Upon the merits.' This appeal ■ was transferred from ,the first department tó the second department. . ...
    The defendant Edward M. Davis was the-sole heir and next of kin of George Davis, Jr., and Sarah E'. Davis, his father and mother, deceased. Letters of administration on the estate of each of them, were issued to the defendant Henry L. Davis, and in the year 1879 he ivas appointed general guardian of -Edward M.-Davis, who was then an infant.. -In- the year 1894, when the-latter was upwards of twenty-one years of age, he employed the-plaintiff, who was then, and yet is,.an attorney-and counselor at law,, to take p'roceedings by action, or otherwise, to' require Henry L. Davis- to account as such. guardian, and agreed with the plaintiff that he should have for his services forty per centum of the gross amount. realized- from the guardian.
    Later, the defendant. Edward M. Davis and the plaintiff entered into a further agreement, in writing, of date Hovcmber 20, 1894,-whereby, after. reciting among other things the' former agreement, Edward M. Davis sold and assigned to the plaintiff forty per centum of his claim upon the defendant Henry L. Davis as' his guardian. And the plaintiff- thereby agreed to prosecute the. claim for Edward M. Davis against the estate of Sarah E. Davis and other persons. referred to, as he, plaintiff, might deem to. be to the advantage of ■Edward M. Davis. '
    By his complaint the plaintiff alleges all those facts, and the exists ence of such claim of Edward M. Davis against the defendant Henry - L. Davis as guardian. The plaintiff also alleges that' he proceeded to investigate the matter of the estate of .Sarah E. Davis, deceased, and instituted proceedings to compel Henry L. Davis to account as administrator, and • was about proceeding to obtain his accounting as such guardian, when the latter sought to arrange a compromise with Edward- M. Davis, and, “ by-collusion and covin, to make an advantageous settlement in order to defeat the plaintiff from obtaining his compensation as provided in said agreement.” And that Edward M. Davis “ consented to, and entered into, such scheme,” with Henry L. Davis, “for the purpose and object above named.” That such defendant has not tiled any account as guardian, and that, because no accounting has been made, the plaintiff is unable to state the amount to which he is entitled. The relief sought by the plaintiff was an accounting by the defendant Henry L. Davis, as such guardian, with a view to the determination of the amount due to the plaintiff and other relief.
    
      John J. Joyce, for the appellant.
    
      O. Elliott Minor, for the respondent.
   Bradley, J.:

The defendant Edward M. Davis was properly made a party defendant because he. declined to join as a party plaintiff. The relation of attorney and client between the plaintiff and defendant appears. The' action, however, is not founded upon any lien in behalf of the plaintiff, nor could it be supported on such ground. The foundation on which the plaintiff rests his alleged right of action is an executed, as distinguished from the executory, agreement by which the defendant Edward M. Davis assigned to him forty per centum of the amount of the claim, whatever it was, which existed against the defendant Henry L. Davis, and for which he was liable to account as general guardian of the other defendant. The fact that there was some and a certain amount for which he as' such guardian was hablé to account sufficiently appeared upon the trial for the purpose of the question presented on this review. And the evidence tended to prove, and it is not questioned, that the defendant Henry L. Davis was advised when he negotiated the settlement with his ward that such agreement had been made between Edward M. Davis and the plaintiff.

Without adding any evidence to that introduced on the part of the plaintiff, the defendants’ counsel moved that the complaint be dismissed on the grounds: 1. That no cause of action was alleged in it or proved. 2. That the plaintiff, as attorney of the court, could not maintain the action. 3. That his only, remedy was by action at law against his client for damages. In granting the motion the court, expressed the view. that the case came within the principles" announced in Randall v. Van Wagenen (115 N. Y. 527): In that case the plaintiff was an attorney and counselor-at law. He alleged that as such -he had been -prosecuting an action in behalf of parties,; O’Veil against Van Wagenen; upon a cause of action on contract for upwards of $10,000;. that, as compensation for his. services, was agreed between- him and the plaintiffs therein that he •-should have one-half the amount of any recovery which should be had that it was further agreed that, the plaintiff should hold the entire claim -against Van Wagenen as collateral security for the payment to him of such compensation; that thereafter the "O’Veils, fraudu-. lently colluding with--Van Wagenen to cheat and defraud the plaintiff, made an agreement with him in terms settling the claim and discontinuing the action. The relief there sought was the recovery of a specific sum of -money. The complaint in that action was dismissed at the" opening of the trial on the ground that it failed to state facts-sufficient to constitute a cause of action.' In the view here taken of that case, it has no controlling application to the question upon which the disposition of the -present case depends,

' In the Randall case it was held -that the complaint "was properly dismissed because (1) it' could -not be supported as for a lien for reasons well established by authority,, and- (2). the action could not be sustained by the plaintiff as assignee of the O’Veils', because the complaint in that aspect alleged no cause of action against Van Wagenen upon which to found any recovery, in that no contractas the foundation of any claim, of the O’Veils against him was alleged. And the court added :■ “Assuming that after the discontinuance of the original action Randall, could have brought a suit as assignee on the contract between the O’Veils and Van Wagenen,'this was not such an action,”

In the case at bar the plaintiff alleges. and proves not only the assignment to him, but- also that the defendant was liable to account to his assignor for some, and the -evidence tends to prove an amount. The apparent purpose of the action is to compel .the defendant, as such general guardian, to account, which is the subject of equitable jurisdiction, as his relation is, in such sense, that of trustee, and for such, purpose the jurisdiction of this, as a court of equity, is con current with that of the Surrogate’s Court. (Haddow v. Lundy, 59 N. Y. 320; Sanders v. Soutter, 126 id. 193.)

It is difficult to see, in the situation as presented by the pleadings and proofs, how the dismissal of the complaint can be supported. The settlement made with Edward M. Davis by the defendant Henry L. Davis, charged with notice of the assignment to the plaintiff, did not conclude the latter. It is true that was an agreement made between attorney and client, and as between them considerations may arise not applicable as between parties otherwise situated. But that relation does not have any necessary bearing upon the question presented on this review. The contest here arises upon the appeal of the plaintiff, between him and. the defendant Henry L. Davis only. It is true that the value of such services as the plaintiff rendered for his client does not appear. Hor is it essential that it should for the purposes of this review. It does appear that he performed some service. And if, as between him and Edward M. Davis, by reason of their'relation, it should be claimed to be inequitable to allow the plaintiff the full amount of the forty per cent, that is a matter properly for consideration in view of such proof as may be given on the subject.

It is sufficient for the purposes of this review that such relation does not, so far as appears, deny to the. plaintiff the right to some relief upon the cause of action alleged by him, and which the evidence tended to establish. (Sanders v. Soutter, 126 N. Y. 193.) And although an agreement between attorney and client for a share in the subject of an action,, as compensation for its prosecution by the former, may be regarded with suspicion, and will not be extended by construction unfavorably to the client, it is not presumed to be void. (Burling v. King, 2 T. & C. 545; Fowler v. Callan, 102 N. Y. 395.)

The defendant Edward M. Davis appeared in the action and answered. By his answer, he recognized the agreement between him and the plaintiff, and hereinbefore referred to, and made no attack upon it, its purpose or fairness. This, however, can be the subject of consideration upon another trial, if any occasion for it there arises.

These views ,ead to the conclusion that the judgment should be reversed and a new trial granted, costs to abide the final award of costs. ...

All concurred.

Judgment reversed and new trial granted, costs to abide the final award of costs.  