
    Elijah L. Roake, Respondent, v. Charlotte N. Palmer, Appellant.
    Second Department,
    April 19, 1907.
    Attorney and client contract of retainer construed.
    An attorney’s contract of- retainer whereby the client agrees to pay him twenty- _ ■five per cent of such property as he may secure contemplates'a collection of the claim before the percentage is recoverable, and the client is hot liable when'
    . it is not shown that any amount was collected. '
    The fact that the attorney at the instance of the client gave a substitution is not; such breach of the contract of retainer as renders the client liable -when no collection has been made.
    When an attorney fails to show performance of the contract" of retainer his recovery, if any, must be based upon a quantum meruit and not upon contract"
    Appeal by the defendant, .Charlotte N. Palmer; from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plain tiff, rendered on the 15 th day of May, 1906. • . .
    
      Sanford S. Gowdey, for the appellant. . ■ . ■. ■
    
      Charles jl. Hauhert, for the respondent.
   Jenks, J.:

This action is by an attorney at law . against his cliént upon the following contract'. ' ' .

“ I hereby retain and employ Elijah L. Roaké as my attorney and counsel to settle or compromise, sue for of collect the-sum of Ten hundred and-fifty Dollars and interest from'March 2, 1900, due me from H. C. and Gr. L. Baker and H. S. Stewart, and he, having rendered services for me in such connection, in consideration thereof, dr for such services as he may render in "the future therein, I hereby agree to.pay him Twenty-five percentum.thereof • for either of such,, or of such property as he may secure therefor, all the same to be payable to him or transferable to him or liic assigns on settlement, entry of judgment or voluntary discontinuance or substitution thereof or therein. (Signed) L. N. PALMER.”

The attorney brought action upon the claim. Issue was joined and the case was placed on the trial ■ calendar. At this stage the attorney, at the instance of the defendant, gave a substitution.

The court instructed the jury that if they found that this contract, was executed by the parties, the plaintiff was entitled to recover the percentage named. The jury rendered its verdict for the plaintiff. I am of opinion that the plaintiff did not make out a cause of action upon the contract. The intention of the parties is not that the attorney absolutely and in any event should receive as compensation one-quarter of the amount of the claim. The language, “ I hereby agree to pay him Twenty-five percentum thereof, for either of such, or of. such property as lie. may secure therefor,” contemplates a collection of the claim and a percentáge upon the amount thereof. There is not the slightest evidence, but the contrary, that, any amount has ever been realized upon the claim'. The contract does not intend that if there be a “ substitution therein ” then, irrespective of any realization upon the claim, the plaintiff should receive absolutely and in any event one-fourth of the amount of the claim, but that provision is likewise conditional upon collection upon the claim. A contract which provided in effect that if the client changed his attorney, in such event the client must pay one-fourth of the claim irrespective of any recovery, as if by way of penalty for-the exercise of the client’s right, might well be held unconscionable.

The defendant is not.liable upon the contract in that she demanded a substitution. In Tenney v. Berger (93 N. Y. 524, 529) the court, per Earl, J., say: “While the attorney is thus bound to entire performance, and the contract as to him is treated as an entire contract, it is a singular feature of the law that it should not be treated . as an entire contract upon the other side; for it is held that a client may discharge his attorney arbitrarily, without any cause, at any time, and be liable to pay him only for the services, which he has rendered up to the time of his discharge. (Ogden v. Devlin, 45 N. Y. Sup. Ct. 631; Trust v. Repoor, 15 How. Pr. 570; Gustine v. Stoddard, 23 Hun, 99.) ’’ In any event the plaintiff did'not make out a case upon the contract. Upon the facts his remedy, if any, was upon quantum meruit. ■ (Badger v. Celler, 41 App. Div. 599, 602, citing Dolan v. Rodgers, 149 N. Y. 489, 495; see also, Johnson v. Ravitch, 113 App. Div. 810.) . Defendant’s motion, to set aside the verdict and for á new trial Was Well made.

The judgment should be reversed and a new trial ordered, costs . ' to abide the event.

,■ Woodward, Gaynor and Rich, JJ., concurred.

Judgment of the-Municipal Court reversed and new trial ordered, costs to abide the evbnt. ; 
      
      45 N. Y. Super. Ct. 631.—[Rep.
     