
    
      In re Hines.
    (Supreme Court, General Term, First Department.
    
    January 28, 1889.)
    .Judqmext—Res Judicata—Order of Special Term.
    A general guardian employed an attorney to recover her wards’ property, promising him a contingent fee equal to one-third of the value of the property recovered. He was successful, and in a proceeding by the guardian to sell the wards’ land to pay debts he filed his claim for his fee. The matter was referred, with instructions to report as to the indebtedness of the wards, and to take testimony as to the reasonableness of the agreement between the guardian and the attorney. The referee reported the agreement reasonable, ascertained the value of the property, and the amount due the attorney. This report was confirmed, and judgment rendered ordering the attorney’s claim paid out of the proceeds of the property when sold, and this judgment was affirmed on appeals successively to the general term and court of appeals. When the property was sold, some years later, it brought less than its estimated value, and, on motion of the special guardian of the infants, the ■court modified the former judgment by reducing the amount of the attorney’s claim to one-third of the net proceeds of the sale. Held, that the question as to-the amount of the attorney’s compensation was res adjudicata, and the special term, had no power to modify its former -judgment.
    Appeal from special term, Few York county.
    Proceeding by Mary E. Hines, general guardian of her infant children, to sell their land to pay debts. John L. Brower presented a claim for attorney’s fees, which was allowed, and the judgment of allowance affirmed at general term, (42 Hun, 659, mem.,) and by the court of appeals, (12 F. E. Bep. 60.) The case being remanded, the land was sold, and an orderwas made reducing Mr. Brower’s allowance, from which he appeals.
    Argued'bel'ore Van Brunt, P. J., and Daniels and Bartlett, JJ.
    
      Truman H. Baldwin, for appellant. Turner, McClure <fi Rolston, Lillian H. Andrews, Frederick Smyth, and Simpson & Werner, for various respondents.
   Van Brunt, P. J.

Actions to establish the legitimacy of the infant sons of W. B. Hines, and to recover his real estate for them, were commenced by Mr. Brower under an agreement between Mrs. Hines, the mother and general guardian of said infants, and himself, whereby, in consideration of his services, his compensation was to be a sum of money equal to one-third of the value of all said property recovered, and restored to her and her children. After a long litigation these actions were successful, and real estate of large value was recovered. On the 1st of April, 1884, Mrs. Hines having presented her petition for leave to sell certain real estate in order to pay debts, an order was made referring it to a referee to inquire into the merits of the application, and the truth of the allegations of the petition, and to hear the allegations and proofs of all persons interested in the property, or in the application and report, with his opinion thereon, particularly as to the alleged indebtedness of the infants, together with the testimony, with all convenient speed. In June, 1884, the referee made a report, reporting, among other things, as a debt of the said infants, the amount of one-third of the net value of the property recovered under the agreement above mentioned, and then proceeded to assess the value of the property, and reported that over $19,000 was due from each of the infants to Mr. Brower upon the valuation found by him. Upon the coming in of the report, confirmation was denied upon the ground that there was not sufficient evidence as to the' reasonableness of the agreement between Mrs. Hines and Mr. Brower, and it was referred back to the referee to enable the parties to produce additional proof upon this point. After proceedings before the referee upon this new order of reference, a supplemental report was made to this court in September, 1885. On the 8th of June, 1886, an order was entered confirming said report, and adjudging upon the basis of the estimated value of this property that the indebtedness from these infants and Mrs. Hines under the agreement made'for the prosecution of the suits was over $40,000. The special guardian was authorized to sell, and was directed to pay to Brower out of the proceeds of the real estate the sums adjudged to be due. Some portion of the property was sold almost immediately thereafter, and the sale of other parts of the property was deferred for some time, and resulted in a price less than the estimated value in 1884 at the time of the reference in question. Thereupon the special guardian petitioned this court to reduce the alleged indebtedness to Brower to one-third of the net amount of the proceeds of the sale, deducting taxes, etc., down to the time of passing title to the purchaser, which motion was granted by the court below, and from the order thereupon entered this appeal is taken.

The proceeding out of which this controversy arises was a proceeding upon the part of a general guardian to sell real estate belonging to infants in order to pay the indebtedness of the infants incurred by the general guardian on their behalf. The agreement between the general guardian and Mr. Brower being made between attorney and client, before he could claim anything upon that agreement he was bound to show that it was reasonable, and he had thereby taken no undue advantage of his client; because it is a familiar rule that in all agreements between attorney and client the presumption is against the attorney, and he must show that the agreement made with his client for compensation is not an extortionate one, but is reasonable. It was this question which was referred to the referee, and this alone, as far "as the claim of Mr. Brower was concerned. However, in the consideration of this question the referee was compelled to take proof of the value of the property in order to show the amount which would be received by Mr. Brower as the result of these litigations in pursuance of his agreement with the general guardian. This question of amount was a very essential one to be considered in determining the question as to the reasonableness of the agreement. If the report of the referee had stopped there, and the action of the court had stopped there, and the court had simply determined that the agreement was reasonable, and that Brower was entitled to receive one-third in value of the premises recovered in these litigations, the contention upon the part of the respondents would have been established, namely, that the question of the amount of the indebtedness was not in litigation or in controversy in that proceeding, and as a conclusion there would have been no adjudication which would be binding upon the infants or their representatives. But the referee went further, and determined the amount of the indebtedness which was due to Brower from these infants, and the court, in confirming his report, adjudged that a certain amount was due from these infants to Brower. It is to be observed that Brower’s compensation was not to depend upon the sale of the premises recovered. His agreement was that he should receive a sum of money equal to the one-third of the value of said property recovered and restored to Mrs. Hines and her children. Therefore, in determining as to the reasonableness of this agreement, the value of the property was a necessary fact to consider, and in determining the amount of the indebtedness such indebtedness was necessarily determined by the value of the property recovered, and thereupon, upon the coming in of the report, the court adjudged the indebtedness to be thus and so; and from this order an appeal was taken to the court of appeals, the order was affirmed, and therefore became- the final order of this court. In this proceeding, the court having undertaken to ascertain the amount of the indebtedness of the infants, and the creditors having proved their claims, and the court having adjudged certain amounts to be due to those creditors, it is difficult to see how this adjudication can be interfered with. If the terms of the agreement between Mrs. Hines and Mr. Brower, fixing the latter’s compensation, had contemplated that such compensation should be determined by the sale of the property recovered, then perhaps there might be some foundation for the position taken upon the part of the respondents. But, as already said, Brower’s right to compensation nowhere depended upon a sale, but he was to be entitled to recover a sum of money equal to one-third of the value of the property recovered. This debt the general guardian sought to pay by a sale of the infant’s estate; and this debt Brower established before the referee, and the court adjudged to be due to him, which adjudication was affirmed by the court of appeals. It seems to us that now it is too late to say that the property was not of the value which it was found to be in the proceedings before the referee. "We have not referred in the foregoing opinion to the question in regard to the compensation of counsel, because that is not at all necessary. The claim that the special term had power to correct, amend, or alter its previous order is not well founded, in view of the fact that such order was an adjudication upon rights over which it had jurisdiction, and was not simply an order, but a judgment. The order should be reversed, with $10 costs and disbursements. All concur.  