
    Ferdinand V. Sanford, Respondent, v. Eliza F. Bronson and Others, Appellants, Impleaded with Others.
    Second Department,
    December, 1905.
    Attorney and client — attorney prosecuting statutory proceeding is entitled to recover for services though statute be held unconstitutional.
    When the plaintiff, a lawyer^ has been employed by landowners to procure the drainage of swamp lands under the provisions of the Laws of 1895, chapter 884, and has prosecuted an unsuccessful attempt to sustain the constitutionality of such statute, he is entitled to recover the value of his services although the statute under which he proceeded is held to be unconstitutional.
    He is entitled to recover actual disbursements made in connection with appeals, but not for advancements made to the commissioners appointed under said statute.
    Appeal by the defendants, Eliza F. Bronson and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Orange on the 24th day of February, 1903, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 4th day of March, 1903, denying the defendants’ motion for a new trial made upoú the minutes.
    
      Henry Bacon [Joseph W. Gott with him on the brief], for the appellants.
    
      A. S. Tompkins, for the respondent.
   Woodward, J.:

The plaintiff is a lawyer and brings this action to recover for professional services rendered to, or in behalf of, the defendants in an effort to drain certain swamp or bog lands in the towns of Chester and' Blooming Grove in Orange county, under the provisions of chapter 384 of the Laws of 1895. This .iyas an act enacted in pursuance of the provisions of section 7 of article 1 of the Constitution of this State, as amended in 1894, and the evidence warrants a -finding that the defendants, acting through a committee of three of their number, -consulted the plaintiff in May,-1895, in reference' to the drainage of their lands, and that the plaintiff at first suggested a voluntary arrangement among the persons. interested; that' he drew up a'petition, in which three of the landowners were constituted a committee or agents of the subscribers to receive and use for the purpose of developing a drainage system the moneys which should be subscribed. This scheme failed to produce the desired result, less ‘than $1,000 being subscribed, arid it was then agreted among the subscribers that a proceeding should be instituted under the provisions of the statute. The plaintiff undertook the work, prepared the petition, which was subscribed by the defendants and several others who have since died, and secured the appointment of the commissioners provided by the-statute. He advised the commissioners, and generally conducted the proceedings looking to' the accomplishment of the end' desired by the defendants, and for which he was employed, and when the work had progressed well towards completion, and it became necessary to enforce the collection of the assessments made upon the various properties siqjposed to be benefited by the improvement, some of the property owners involved, but who were not among the petitioners, contested the assessment and raised the question of the constitutionality-of the statute. The plaintiff appeared before the County' Court, where the question was 'originally raised, and succeeded in having the act sustained. The case was appealed to. the Appellate Division, where the plaintiff appeared in behalf of the commissioners and in general pursuance of the object -for which he was originally retained. At this point the proceedings were condemned as not Being authorized by -the Constitution (Matter of Tuthill, 36 App. Div. 492), and the plaintiff, after consultation with such of the defendants as appeared upon his invitation, and with the authorization of the landowners who had been originally held out as acting as a committee or as ;agents of. the defendants, appealed to the Court of Appeals, where the decision of the Appellate Division was affirmed. (163 N. Y. 133.) The defendants, while conceding the, original employment, now contend that they never authorized the plaintiff to appear in these several appeals, but the evidence is not' disputed that none of them ever withdrew from the effort to bring about, the drainage of their land, and as this was the general object for which the plaintiff was employed, it seems to us that they are hardly in a position to repudiate his acts in endeavoring to sustain the statute. There can be no doubt, from the evidence, that each of the defendants knew of the course' of events, knew that the appeals were being taken, and that the plaintiff was appearing in their behalf in support of the only statute which would enable them to accomplish the object which they had in view, and we can see no justification for the contention of the appellants that the appeals were looked after by the plaintiff without their consent.

' Upon the trial the learned court instructed the jury that they could not award any compensation to the plaintiff for services which he performed in securing the appointment of the commissioners, etc., it being contemplated by the statute and by the contract of his employment that such services should be included in the cost of the improvement and paid for by the money raised upon the assessment for benefits, but it was stated as. the law that the plaintiff might recover for those services which he was called upon to perform in behalf of the defendants in an effort to sustain the law, if the jury should find from the evidence that he was employed by them for this purpose, and the jury has found in plaintiff’s favor, deducting about $300 from his claim for services. We are of opinion that the evidence supports this finding, and that the fact that the plaintiff failed, by reason of the unconstitutionality of the statute, to accomplish the result desired by the defendants cannot be permitted to defeat his recovery for services performed in good faith and in the exercise of reasonable judgment. Statutes are presumed constitutional, and it would be a harsh rule which made an attorney’s compensation depend upon the constitutionality of the statutes under which he attempted to serve the ends of his clients.

The plaintiff’s claim for disbursements, including $500 which he advanced to the commissioners, was likewise litigated, and the court instructed the jury that it could not reimburse the plaintiff for this advancement, but permitted a recovery for actual disbursements in connection with the appeals, and we are persuaded that the verdict, of the jury in this respect ought not to be disturbed.

We do not find reversible error in the case, and conclude that the judgment and order ’ appealed from should be affirmed, with costs. 1

* Present — Hirschberg, P, J., Bartlett, Woodward, Jenks and Hooker, JJ.

Judgment and order unanimously affirmed, with costs.  