
    In the Matter of the Petition of John S. Wise, Jr., Respondent, an Attorney at Law, to Have a Lien Determined and Enforced upon the Property of Mary Clementine Smedley, Appellant, and to Adjudicate and Determine the Amount of Compensation Due Him from Her.
    First Department,
    May 5, 1916.
    Attorney and client ■— summary proceedings to determine liability of client for professional services — contract of retainer construed — attorney entitled to compensation for appeals which original retainer did not require him to argue — amount of compensation — fee of expert witness.
    Summary proceedings brought by an attorney to fix the amount due from a client for professional services. It appeared that a will leaving property to the client for services rendered as a nurse and companion was judicially determined to have been induced by fraud and undue influence. Prior to his death the testator had given to the same person property of about $50,000 in value, and a suit had been brought to recover the same on the ground that the gift had been induced by fraud and undue influence. As the defendant, the attorney’s client, was without funds, it was agreed in writing that the attorney in addition to a small retainer was to make his compensation contingent upon the result of the trial, and, if successful, was to be paid the sum of $5,000. The trial at Special Term resulted in a judgment against the client, but on appeals to the Appellate Division and Court of Appeals her right to retain the gift was judicially established.
    
      Held, that the attorney’s contention that the express contract for a contingent fee came to an end by reason of his failure to succeed at trial was untenable in that his success on the appeals was founded upon the evidence produced at trial;
    
      That, as there was. nothing in the written contract which required the attorney to prosecute an appeal, he was entitled not only to the contingent fee of $5,000, but also to a reasonable fee for arguing the appeals;
    That in view of the values involved in the litigation the attorney’s compensation should be fixed at $9,500;
    That $150 was a sufficient fee for a lawyer employed to testify ds an expert witness to the value of legal services in another proceeding.
    Appeal by Mary Clementine Smedley from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 1st day of December, 1915, fixing the fee due to the respondent and directing the payment thereof.
    
      Harry B. Bradbury, for the appellant.
    
      Dallas Flannagan, for the respondent.
   Scott, J.:

This is a summary proceeding brought by an attorney to fix the amount due to him from a client, one Mary Clementine Smedley. Miss Smedley had occupied for some years the relation of nurse and companion to an old gentleman named Hiram H. Lamport, who bequeathed to her, by his will a portion of his estate estimated to be of the value of about $30,000. This will was attacked by the relatives of Lamport, and was held to have been induced by fraud and undue influence on the part of Miss Smedley, and, therefore, void.

Lamport had also given to Miss Smedley, during his lifetime, certain securities and property which ultimately proved to be worth about $50,000, and after the determination of the will controversy, his relatives through the administrator of his estate, brought suit against Miss Smedley to recover from her the property thus given to her, upon the ground that she had procured these gifts to be made by fraud and undue influence. In view of the outcome of the litigation over the will, Miss Smedley’s prospects of successfully defending the suit against her appeared anything but bright, and the difficulties before her were enhanced by the fact that she had little or no money to expend on litigation.

In this extremity she applied to the petitioner, one of the younger members of the bar, who undertook the defense of the action for a small cash fee, with the promise of a large fee in case of success. At Miss Smedley’s request the petitioner on May 27, 1910, wrote her the following letter defining the terms upon which he would undertake to represent her: “ Miss Matilda Smedley, after making arrangements with us requested us to write a contract expressing terms of our employment. That we may have definite memorandum on the terms of our employment, we would like you to confirm this letter.

Our understanding with your sister was that we should have a retainer of $250, for which we would try the pending lase between the representatives of Hiram H. Lamport, deceased, as plaintiffs, and yourselves and others, defendants.

“ Understanding you are without means, we agreed to make our compensation contingent upon the result of this trial, and if we are successful, we are to be paid an additional sum of $5,000.”

Miss Smedley replied, in writing, that this agreement was satisfactory to her, and it thus became the contract between the parties.

The action was tried at Special Term and resulted in a judgment against Miss Smedley, who thus stood to lose aE that had been given her by Mr. Lamport and substantially everything she had in the world. Her only chance to save anything was through an appeal, and after the decision against her on the facts, this chance seemed even less hopeful than had been her chance in the first instance to successfully defend the action. To prosecute such an appeal would involve considerable expense which Miss Smedley had no means of meeting and which the petitioner was not inclined to advance, nor under any obligation to do so.

Finally certain friends of Miss Smedley undertook to raise the money necessary for actual disbursements and petitioner undertook to prosecute the appeal. This he did with such success that not only was the judgment reversed by this court, but an affirmative judgment was ordered in Miss Smedley’s favor dismissing the complaint, and this order was affirmed by the Court of Appeals. Thus Miss Smedley was confirmed in the ownership and possession of property valued at about $50,000, her right to retain which had been gravely threatened. When the time came to agree upon petitioner’s compensation for these valuable services the parties were unable to agree, and this proceeding resulted. As not infrequently happens, the client was far more liberal in her promises when success appeared to be doubtful, than she was when success had been assured and time came for the fulfillment of her promises.

Both parties now seek to ignore the letter of May 27, 1910, above quoted. Petitioner claims that after the unsuccessful outcome of the trial, and when the question of an appeal was taken up, it was mutually agreed, orally, that the agreement for a contingent fee of $5,000 should be abrogated, and that in case the appeal resulted successfully he should be paid the fair value of all his services, including as well the trial and the preparation therefor as the argument of the appeals, and it is upon this theory that he tried this case and has been awarded a fee.

The respondent’s contention is that the agreement for the contingent fee of $5,000 related only to the trial of the cause at. Special Term, and that when that trial resulted unsuccessfully petitioner’s ¿laim to the $5,000 disappeared, and that all he is entitled to is the $250 for which he agreed to try the case, and which was paid him. She concedes that petitioner is entitled to a reasonable fee for arguing the appeals, but insists that he is entitled to no more.

We are unable to agree wholly with either of these claims. In our opinion Miss Smedley’s ultimate success on appeal was very distinctly the result of the trial, for it was upon the case made at the trial and the evidence which petitioner was able to find and produce that judgment finally went in Miss Smedley’s favor. The fact that the final judgment was ordered by this court, upon the evidence taken at the trial, instead of being ordered by the Special Term, does not make the final favorable judgment any the less a result of the trial. We think, therefore, that petitioner fairly earned the $5,000 stipulated for in the written agreement.

If the petitioner had been content to go on with the appeal without any further agreement as to his compensation, and had succeeded, he would have been limited to the stipulated sum. There was nothing in the written contract, however, which required him. to prosecute an appeal, and his client could not reasonably have complained if he had refused to do so. We are of the opinion, from the evidence, that a new agreement was made for petitioner’s compensation for arguing the appeals, and a consideration for such an agreement is to be found in the fact that petitioner was not obligated to proceed with the appeal unless he was willing to do so. We are not convinced, however, that the new agreement went quite so far as petitioner claims. He says that he stipulated as a condition of prosecuting the appeal that, in case of success, he should be paid on the basis of a quantum meruit for all services rendered in the cause. We do not doubt that it was plaintiff’s intention so to stipulate, but it takes at least two to make a contract, and we are not at all satisfied that Miss Smedley understood the agreement in this way, or consented to it. If petitioner desired to so radically change the existing agreement between himself and his client he should have taken pains to see that the new contract was clearly expressed and agreed to. In our opinion what Miss Smedley intended to agree to, and understood that she did agree to, was that petitioner should be paid the reasonable value of his services for arguing the appeals, leaving the contingent agreement for $5,000 in case of ultimate success unrevoked and unaffected. On this theory petitioner would be entitled to the $5,000 stipulated in case of success in the written contract, and a reasonable fee for arguing the appeals in this court and the Court of Appeals, and this, we think, would produce a fair and just result.

Only one of the expert witnesses segregated petitioner’s services and placed a separate valuation upon those rendered on the appeals. He is a well-known lawyer of wide experience and the respondent does not question his valuations. He placed the value of petitioner’s services on the appeal to this court at from $1,500 to $2,000, and on the appeal to the Court of Appeals at from $2,000 to $2,500. Under all the circumstances we think the larger of these estimates should be adopted, especially as Miss Smedley would not have realized anything but for the skill and industry exhibited by the petitioner. The result is that the petitioner’s compensation for services in the principal case will be reduced to and fixed at $9,500. The only other item of petitioner’s charges which is questioned on this appeal is the payment of the sum of $500 to an office associate to testify as an expert .witness to the value of the services of a lawyer who sued Miss Smedley for work done in the probate proceeding. The retainer of this expert was authorized by Miss Smedley, but she was not consulted as to the compensation to he paid him. The fee paid him is obviously much too high, and is reduced to $150, which sum is allowed to the petitioner on that item.

The final order appealed from will be modified in accordance with the views expressed in this opinion and as modified will be affirmed, without costs to either party in this court. Order to he settled on notice and at the same time any necessarv modification of the findings may be submitted.

Clarke, P. J., McLaughlin and Smith, JJ., concurred.

Order modified as directed in opinion and as modified affirmed, without costs. Order to be settled on notice.  