
    SESSIONS v. PALMETER et al.
    (Supreme Court, General Term, Fifth Department.
    January 18, 1894.)
    1. Attorney and Client—Compensation—When Due.
    Where an attorney, employed to contest a will, prepares and tries the case, and submits it for decision, he is entitled to his compensation, without waiting until the decision is actually rendered, unless it was. agreed that he should have a fixed sum for conducting the proceeding to the termination.
    2. Secondary Evidence—Notice to Produce Writing.
    Notice served on an attorney, who appeared for a party, and made oath that he was authorized to appear, to produce a paper in the possession of his client, is sufficient to authorize secondary evidence as to the contents of such paper.
    Appeal from Chautauqua county court.
    Action by Walter L. Sessions against Washington Palmeter and' Jane Palmeter to recover for services rendered as attorney at law. From a judgment of the county court reversing a judgment entered on a verdict in a justice’s court, plaintiff appeals.
    Reversed.
    Argued before DWIGHT, P. J., and HAIGHT, LEWIS, and BRADLEY, JJ.
    Walter L. Sessions, in pro. per.
    A. Hazeltine, for respondents.
   HAIGHT, J.

The defendant Jane Palmeter was a sister and heir at law of Alice G. Bentley, deceased, and, as such, contested the admission of her will to probate before the surrogate, Chautauqua county. The plaintiff was employed by defendants to conduct such contest. The evidence tends to show that he was employed by both of the defendants, who are husband and wife, and a case was prepared, tried, and submitted to the surrogate upon written briefs. Thereupon the plaintiff rendered a bill for his services, in which he charged them $125, and inclosed a note for that amount, which he requested them to sign and return, stating they could get the note extended if they so desired. That they did not return the note, or afterwards call upon him, until a week before this action was brought, at which time Mrs. Palmeter called upon him at his office, and said that she did not wish to give a note. That he thereupon said to her that he should be in his office on Thursday of the next week, and that he wanted her to come in and fix the matter up at that time. That she found no fault with the amount of the claim, but did not come near at the time fixed. And that no portion of his claim has been paid. The defense was that the claim was not due, and that the plaintiff had agreed to charge nothing in case the contest was not successful. The surrogate had not, at the time of the trial, rendered his decision, and no decree upon the contest had been entered by him. The jury rendered a verdict in favor of the plaintiff for the sum of $100, thus disposing of the controverted question of fact in the case. The county court reversed the judgment, upon the ground that the plaintiff’s employment was not terminated until the decision of the surrogate and the decree was entered thereon. It was the duty of the surrogate to make and file in his office his decision in writing, in which he must state separately the facts found and the conclusions of law. Code Civil Proc. § 2545. He is also required to keep a book in his office in which he must record his decrees. Section 2498. It is the usual practice for him to prepare and record his own decrees. The plaintiff’s services were therefore substantially performed at the time he rendered his bill. But assuming the rule to be that an attorney who is retained generally to conduct a legal proceeding enters into a contract to conduct the proceeding to its termination, he cannot abandon the services of his client without justifiable cause and reasonable notice, it does not follow that he is not entitled to compénsation, from time to time, for the services rendered, unless, by the agreement, a fixed sum has been stipulated for conducting the proceedings to the termination. In Tenney v. Berger, 93 N. Y. 524-529, Earl, J., in del ivering the opinion of the court, says:

“If a client refuses to advance money to pay the expenses of the litigation, or if he unreasonably refuses to advance money, during the progress of a long litigation, to his attorney, to apply upon his compensation, sufficient cause may thus be furnished to justify the attorney in withdrawing from the service of his client.”

The plaintiff’s claim is upon quantum meruit, and is prosecuted upon the theory that no express agreement was made as to the compensation that should be paid for his services. There was no evidence that he had abandoned Ms clients’ case. He had performed all the services he could render down to the time of the entering of the decree. He had rendered his bill for such services, and no objection had been made thereto as to the amount, or to the effect that it was not due at the time the action was brought, We think, therefore, that, under the circumstances, his judgment should have been permitted to stand.

Upon the trial an exception was taken as to the admission of oral evidence as to the contents of the letter sent to the defendants in which, he rendered his bill. It appears that Mr. Hazeltine appeared for the defendants before the justice, and made oath that he was authorized to appear for them; that thereupon notice was served upon him to produce the letter upon the trial. Upon the trial the plaintiff demanded the production of this letter, which was refused. We think that this was sufficient to authorize the giving of oral evidence as to its contents. The judgment of the county court should be reversed, with costs, and that of the justice affirmed. All concur.  