
    FRANCIS C. WRIGHT, Plaintiff and Appellant, v. GEORGE S. WRIGHT, Defendant and Respondent.
    Before Sedgwick and Speir, JJ.
    
      Decided, November 20, 1876.
    DISCONTINUANCE OF ACTION ON PAYMENT OF COSTS.
    
      Attorney’s fees or compensation.
    
    After action brought and sent to referee for trial, the parties settled and plaintiff gave a release to defendant, who agreed to pay all costs. Defendant moved the court for a discontinuance, and an order was entered directing discontinuance on payment of plaintiff’s taxable costs.
    
    The plaintiff’s attorney showed upon the motion that the agreement between him and his client was that he should not charge the plaintiff personally for services or disbursements, but that he should be paid, out of the amount collected, a fee contingent upon recovery; but it did not appear, as matter of fact, that any amount beyond taxable costs and disbursements was due to him.
    
      Held, that upon these facts the court should not have held, as matter of law, that the attorney for the plaintiff was entitled to an allowance for compensation beyond the taxable costs and disbursements.
    The court would not have been justified in holding, as matter of law, that the contingency in the agreement between plaintiff and his attorney, gave the attorney a right to a greater amount than the value of his services.
    No value beyond taxable costs having been shown, the decision of the court, discontinuing the action on payment of taxable costs, &c., was sustained.
    
      Appeal from order, on motion of defendant, directing a discontinuance of the action on payment of plaintiff’s taxable costs.
    On the motion below, the following facts were shown : The action was to recover eighteen thousand dollars upon an account stated. The issues were referred for trial. On the trial the defendant offered in evidence a general release by plaintiff of defendant. This release was executed after the action was brought, and was not pleaded. The referee refused to receive it in evidence. On the ground of this release the defendant moved. The plaintiff showed by his affidavit that he lived in California, that the defendant went to him there and applied to settle the action. “I asked him what was to be done about the fees of my attorney, who had been employed to represent my interests in this action ; and I wanted to telegraph to Mr. Fleming, who held my power of attorney in New York. The defendant objected, and begged me not to telegraph, saying-that he would pay all costs.,” The affidavit of plaintiff’s attorney, among other facts, showed that when he was retained, he was informed by the attorney-in-fact of plaintiff, and by letter of plaintiff, that the latter was without means to pay counsel, or for the costs and disbursements of the action, whereupon it was agreed that he should be paid out of the amount . collected, a fee contingent upon recovery.
    The plaintiff’s attorney claimed that the action should not be discontinued until payment was made for his services, in addition to taxable costs.
    The court below directed a discontinuance upon payment of taxable costs and disbursements.
    
      Mr. Thain, for appellant.
    
      Mr. Potter, for respondent.
   By the Court. —Sedgwick, J.

Under the decisions, which are not few, nor indeed, in all respects harmonious, the learned judge below recognized the right of plaintiff’s attorney to have the settlement between the parties themselves so far opened as not to allow a discontinuance without payment of costs and disbursements. Accordingly, payment of these was imposed as a condition of discontinuance. The appellant now claims that the court should have directed a reference to ascertain what counsel fee, in addition, should be paid.

I am of opinion that the court was not called upon to do this, unless the affidavit disclosed, as matter of fact, that something beyond taxable costs and disbursements was due. The agreement was that the attorney should not charge the plaintiff, personally, for services or disbursements, but that “he should be paid out of the amount collected, a fee contingent upon recovery.” Under such an agreement I do not think that the attorney could recover as for professional" services any greater amount than the value of his services. At any rate, the fact of the compensation being contingent, by itself, does not show that as a fact the attorney could recover a greater amount, bio professional expert shows that usually the rate of compensation is increased by such contingency. Plaintiff’s attorney does not testify to this, although he assumes it to be so. The court would not have been justified in holding, as matter of law, that the contingency gave the attorney a right to a greater amount than the value of his services.

Í am of opinion that the order should be affirmed, with $10 costs, and disbursements, if any, to be taxed by clerk. -

Speir, J., concurred.  