
    John A. Clussman, Plaintiff and Respondent, v. Isaac H. H. Merkel, Defendant and Appellant.
    1. An attorney at law may consent that a judgment obtained by the plaintiff, -his client, upon the defendant’s failure to answer, be vacated and the defendant allowed to answer; on a state of facts on which the Court, according to its customary practice, would make an order to that effect.
    2. Such a consent and the failure of the defendant before judgment recovered are not alone sufficient evidence of negligence which will defeat an action brought by the attorney to recover for his services as such attorney in the suit, in which such consent was given.
    3. In an action, -by an attorney to recover for his services in such a suit, it is erroneous to permit the plaintiff to prove, as evidence, the opinions of a witness, that it was not the purpose of opening such default, to enable the defendant against whom judgment had been recovered by default, to put his property out of his hands.
    4. An attorney, when he consents to vacate a regular judgment, without the knowledge of his client, acts at the peril of being held responsible for any loss which may be shown to have necessarily resulted from that act, and which would have been avoided if his client had been advised of the recovery of the judgment and of the application to vacate it, by his then knowing and being able to disclose facts which would have induced the Court according to its customary practice to require security to be given for the payment of such sum as might be recovered, as a condition to opening the default, and staying proceedings on the judgment recovered thereon.
    5. A referee cannot receive evidence against the objection and exception of a party, and reserve to himself the power of retaining or rejecting it at the conclusion of the proceedings.
    6. In such an action, it is not erroneous to reject evidence that at the time of vacating the default, the judgment debtor had property out of which the judgment could have been collected, when no evidence has been given of such negligence of the attorney in opening the default, as will affect his right to recover for his services, and when such fact with the other evidence given or offered to prove negligence is insufficient, to establish prima fade.
    
    7. Opinions of witnesses, as to the value of the services of an attorney or counsel in a particular suit, are incompetent as evidence, when they are ignorant of the services actually rendered.
    The orderly method of proof is to show the services actually performed and the circumstances under which they were performed; and their value by persons acquainted with such services and having a knowledge of the prices usually paid (when they are not fixed by law).
    (Before Bosworth, Hoffman and Piebrepont, J. J.)
    Heard, June 15;
    decided, July 3, 1858.
    
      This is an appeal by the defendant from a judgment, entered against him on the report of a referee. The action is brought by the plaintiff as assignee of John B. Stevens, attorney and counsellor at law, to recover for professional services rendered by the latter for the present defendant, Isaac H. Merkel, in- a suit in which Merkel was plaintiff and one John Adair was defendant.
    The defense to this action is, that by reason of the negligence and unprofessional conduct of Mr. Stevens, his services in the suit of Merkel v. Adair were of no value, but on the contrary, Merkel was damaged thereby to $300 in amount.
    The suit of Merkel v. Adair was for medical services rendered by the former for the latter, and was commenced in the Supreme Court, August 11, 1853. The amount claimed in that suit was $300. Judgment was rendered in it by default September 16, 1853, for $347.11. Stevens, on being presented by Adair’s attorney with an affidavit, that the omission to answer was by his mistake; that Adair had a defense, and in good faith intended to defend; and with an affidavit of merits; and an offer of Adair to plead immediately, consented without consulting Merkel, to open the default and accept a plea; the judgment to stand as security: Adair put in an answer on the 29th of September, 1853, in which he set up the defense that Merkel was unskillful and incompetent—from habits of gross intoxication—from attending to the duties of a physician; and making a counter-claim of $500.
    In December, 1855, a judgment was obtained in that action, for $318.84 damages, and $240.91 costs. An execution was issued on it, and returned unsatisfied.
    - The negligence and unprofessional conduct charged upon Mr. Stevens in that action, and set up as a defense to the present one, consists (1st,) in his voluntarily opening the default in the suit of Merkel v. Adair, and omitting to docket the judgment got by default; (2d,) in not moving for a reference of that action immediately after issue was joined therein, and (3d,) for a dilatory prosecution of the reference, after that cause was referred. Adair, at the time the judgment against him by default was entered, was in business in Brooklyn, but that judgment was not docketed in that county.
    
      On the trial the plaintiff put to A. H. Sidell, an attorney and counsellor at law, and a witness on his part, this question:
    
      “Q. According to your knowledge, information or belief, was that default opened for the purpose of enabling the defendant to ■ put his property out of his hands ?
    “Objected to by defendant as immaterial and incompetent. The referee decides to receive the answer subject to objection, reserving the right to strike the same out, and defendant excepted,
    “ A., It was not; nothing was said about it.”
    John Adair was sworn as a witness for the defendant, and was asked:
    “ Q. Were you possessed of any property, real or personal, in August or September, 1853, and if so, of what did it consist ?
    “ Objected to. Objection sustained. Defendant excepts.
    “ The defendant offered to prove that in the months of August, September, October, and November, 1853, the witness Adair was possessed of sufficient personal property to pay the claim on judgment by default against him in the suit of Merkel, and that no attempt was made by Mr. Stevens to secure said claim, by the issuing of execution or otherwise, upon that judgment, and that subsequently he became insolvent.
    “ Objected to. Objection sustained, and defendant excepts.
    “ The defendant called as a witness,
    “Daniel T. Walden, who testified: ‘I am an attorney and counsellor at law, and have been for twelve years.’
    “ Q. Look at exhibit A, (bill of particulars and affidavits of Merkel,1 as to witnesses, and as to items,) and state what, in your opinion, would be a fair and reasonable charge as attorney and counsel for plaintiff in obtaining the judgment therein mentioned.
    “ Objected to by plaintiff’s counsel on the ground that it does not appear the witness knows the parties. The papers produced do not show the length of the suit, the various services, the various attendances before the referee, the various times the cause was on the calendar before it was referred, the length of the meetings before the referee, the precise questions argued, how many consultations were had with the client, the length, extent, and importance of them, and a variety of other matters" which could only appear by proof, and not by exhibits. That attorney’s services are not to be estimated by a general sum to be fixed; that no estimate can be fixed without a knowledge of the particular services, and a calculation made. Objection sustained, and defendant excepted.
    “ Q. What would be a fair counsel fee when your client’s reputation was attacked in a suit which lasted for a period of eight months, and where there were twenty or twenty-five attendances before referee, including various and many interviews with your client, and that in a case fiercely litigated.
    “Objected to by defendant. Objection overruled, and defendant excepted. :
    “ A. It depends on the extent the reputation was attacked, the source of attack, and the means sought to attack, and the value. I should say $100 was a fair fee, if the attorney was counsel.”
    Some of the other proceedings occuring at the trial, are stated in the opinion of the Court.
    The referee reported in favor of the plaintiff $225 damages, (with interest thereon from the 8th of March, 1856, the commencement of this suit,) in all $242.32, and from the judgment entered thereon, this appeal is taken. The printed case contains no statement of the facts found by the referee, nor of his conclusions of law.
    
      Wm. B. Stafford, for appellant (the defendant).
    
      A. B. Dyett, for respondent (the plaintiff).
   By the Court;

Bosworth, J.

— Stevens as attorney of Merkel, had authority,, on a state of facts on which the Court on motion would have vacated the default and judgment, and allowed Adair to answer, to waive the judgment and default, without compelling Adair to make a motion to the Court for that purpose. (1 Wend., 108; Hopping v. Quin, 12 id., 517.)

In the latter case, an attorney who. refused to waive a regular default, on the defaulted party offering to do what the practice of the court in such cases required, was compelled to pay the costs of a motion to open it, although the moving party was made to pay the costs of the default. The mere fact, that the default was opened, without first obtaining the consent of Merkel does not of itself, exempt Merkel from liability to Stevens, as his attorney, for the costs of the action.

It would be more discreet for an attorney, before giving such a consent, to confer with his client. If the client knew and could state facts tending to show that, by vacating the judgment unconditionally he would be in danger of losing his claim, and that it would be secure if the judgment was to stand as security for such sum as might ultimately be recovered, he might, with propriety refuse to consent that the defendant be permitted to answer except upon the terms that the judgment should stand as security. In the case of Merkel v. Adair, by the terms of the consent given, the judgment recovered was to stand as security, for any sum that might be recovered in that action.

If an attorney waives such a default without consulting or obtaining the consent of his client, and upon the facts then existing and known to the client, and which upon such a consultation it may be justly inferred he would have communicated to the latter, the attorney might expect that the Court, according to its customary practice would impose terms which would make -the collection, of whatever sum might be ultimately recovered, reasonably safe; I think he acts at his peril in waiving it, and should be held responsible for any loss directly and naturally resulting from such action on his part.

But the mere fact that the opposite party fails before judgment is recovered, is not of itself, and alone, sufficient evidence of such negligence in the attorney, by whose consent the default and judgment were waived, as will disentitle him to recover for either prior or subsequent services in the action.

Upon the evidence given, I think, Adair would have been ' allowed to open the judgment and to answer: whether any other terms would have been imposed, than that the judgment should be permitted to stand as security, or whether even those terms would have been imposed, it is unnecessary to express any opinion now. The position insisted on at the trial was, that the attorney, as between himself and his client, had no right, under any circumstances, to waive the judgment and default, without the consent of the client. If an unconditional vacating of the judgment would not, per se, be negligence disentitling an attorney to recover for subsequent services; an omission to docket the judgment which, was allowed (on waiving the default) to stand as security for such sum as might be recovered, would not be.

It was erroneous to permit the witness Sidell to testify whether, according to his knowledge, information or belief that default was opened for the purpose of enabling Adair to put his property out of his hands.”

If the fact, of such a purpose was relevant, or material, it could not be established by evidence consisting of the conclusions of the witness, based on “ information ” he had received, nor by his belief that such a purpose existed, or influenced Adair. Such evidence accepts the judgment or opinion of the witness as competent evidence, without a disclosure being made, of the nature of the information or the grounds of belief, on which his opinion or conclusion rests. Facts and circumstances must be proved and the referee or jury must determine whether they establish the particular fact in issue, to which, as evidence they are directed.

The referee received this evidence against exception and objection, assuming, that he had the power; and to exercise the power, to determine subsequently whether he would strike it from the case or retain it. The evidence appears in the case as settled; and the conclusion must be that he has retained it, and acted upon it, in determining the issues referred to him.

Evidence that Adair had property, from which the judgment recovered against him by default, could have been collected, would have been competent, if negligence, or a clear violation of duty, in opening it, had been proved. But if the fact of negligence was not established, the rejection of such evidence was not erroneous.

The evidence offered and excluded would not of itself and alone tend to prove negligence. It formed no part of the offer that, Adair was reputed to be or was in fact embarrassed or in debt when the default was opened. There was nothing included in the offer tending to show any more reason for supposing then, that he would fail, or be embarrassed before the action could be tried, than that any other person in the community would.

There was no error in overruling the question put to Mr. Walden. The facts on which he was asked to state his opinion; what “ would be a fair and reasonable charge as attorney and counsel for plaintiff in obtaining the judgment therein mentioned,” did not include all which it was necessary to consider, in forming such an opinion. It did not include, or indicate all of the services proved to have been actually rendered.

An answer to the question; “what would be a fair counsel fee when your client’s reputation was attacked in a suit which lasted for a period of eight months, and where there were twenty or twenty-five attendances before referee, including various and many interviews with your client, and that in a case fiercely litigated,” was improperly received.

The answer does not obviate the objection. The answer was; “ it depends on the extent the reputation was attacked, the source of attack, and the means sought to attack, and the value. I should say $100 was a fair fee, if the attorney was counsel.”

To what extent the reputation must be attacked, what must be the source of attack, and what the means used to attack, to make the services worth, in the opinion of the witness, $100, it would ’ be difficult to conjecture, either from the question or the answer, or from a careful study of both.

One assumption embraced in the question is, that the services, the value of which the witness was to estimate, included “various and many interviews ” between the attorney and his client. How various and numerous they were, how long either of them continued, or to what they related, formed no part of the premises, on which the witness was asked to give a valuation to the services. Under such a question, a witness might estimate for more interviews than occurred, and for interviews relating to matters of difficulty, when they were not of that character, and for interviews consuming much time, when they were in fact brief or casual.

It may not be out of place to observe that the course of examination at the trial was not adapted to secure a determination of the issues influenced by proper considerations only.

Whether the action of Merkel v. Adair was or was not a referrible one, and whether Merkel’s attorney should have moved promptly in it for an order of reference, is a question of law, and of practice, which the referee should have determined, on the pleadings; or upon the pleadings and on the facts proved, as to the matters to be investigated on the trial of it.

Some witnesses express the opinion that the Court would have ordered it referred to a referee, as a matter of course, and that Merkel’s attorney should have moved promptly for such an order.

Others testify that they should have resisted such a motion, if made by Adair, and insisted on a trial by jury: one that, in his opinion, a prudent attorney, under any circumstances, should not have had it referred.

Attorneys and counsel were examined and testified, as experts, as to the law in relation to referrible cases, and whether in this case the attorney should, as a matter of course, and of duty, have moved for a reference, and whether he had or had not a right, in the discharge of his legal and proper duty, to open the default. These opinions upon matters of law, and of established practice in judicial proceedings, and of the rights and duties of an attorney $s between himself and his client, were proved, and as to many points without objection, as competent matters to be submitted to a referee or jury, in deciding the issues of Met joined in this action.

If tried before a Court and jury, it would be the province and duty of the Court, to declare the law and practice of the Courts, so far as it might be necessary or proper for the jury to be informed of either, to enable them to decide the questions of fact. They are not matters, as to which it is proper to take, as evidence, the opinions of witnesses. The orderly course of proceeding on a trial before a referee, is the same.

When the services actually performed, and the circumstances under which they were performed have been shown, the proper proof of their value is obvious. It is by the evidence of those acquainted with such services, and having knowledge of their value, or of the usual and customary charges, where they are-not fixed by law.

When the evidence of facts alleged to constitute negligence has been given, it is for the Court to declare whether a supposed' state of facts, if found to be proved, is sufficient to establish it; whether the alleged negligence relates to the waiver of a regular proceeding, or to a course of action alleged to- be culpably- dilatory, and actually prejudicial.

The judgment should be reversed; report of referee set aside, rule of reference discharged, and a new trial granted, with costs to abide the event. Ordered accordingly.  