
    Mary C. Burke, as Executrix, etc., of Thomas P. Burke, Deceased, Respondent, v. Joseph F. Baker and Others, Appellants, Impleaded with the City of New York, Defendant.
    Second Department,
    March 2, 1906.
    Attorney and client —contract for contingent fee sustained — evidence — diary of deceased attorney admissible to show services rendered.
    Clients who after .retaining an attorney have discharged him and substituted other attorneys, and thereafter finding that his services are necessary by reason of his special fitness have re-employed him under written contracts giving him a contingent fee, cannot thereafter complain that he drove a hard bargain. Deductions from the amount due are not proper merely because the case was tried in court by the other attorneys employed, as the labor of the preparation of a case may be greater than the trial thereof.
    ■When such attorney is dead it is not. error to admit his diaries in evidence to show the services rendered. . "
    Appeal by the defendants, Joseph F. Baker and others, from portions of a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 4th day of May, 1904, as resettled and amended by an order entered in said clerk’s office on the 19th day of August, 1904, upon the decision of the court rendered after a trial at the Queens County Special Term.
    
      William W. Goodrich [Nelson Smith with him on the brief], for the appellants.
    
      Thomas F. Magner [John F. Carew with him on the brief], for the respondent.
   Per Curiam :

The learned^ Special Term at'first blush thought that the plaintiff’s testator did not perform his contract, and so ordered-.a reference to determine what deduction should be made from the stipulated compensation, because another had presented the case in this court. On reargument the court wrote that it had been in error, and a more careful reading of the testimony had convinced it that the testator had fully performed his contract before his death.

The issue Rendered by the pleadings and adhered to very near the close of the plaintiff’s case, was that the written agreement for compensation made by each 'defendant with Hr. Burke was not understandingly executed by the defendant, and that an essential condition thereof was that Hr. Burke was to have the men reinstated within thirty days.

We think-that there is no ground that warrants our disturbance of the findings of the court that Hr. Burke performed his contract. (Lowery v. Erskine, 113 N. Y. 52.) The position of the city required, inter alia, evidence to meet its contention that the appropriation had been exhausted. That this was the crucial point is evident from the opinion of the court at Trial Term. (People ex rel. Gleason v. Scannell, 69 App. Div. 401.) To produce such evidence required thorough, exhaustive and painstaking labor. Hr. Burke, as former corporation counsel for Long Island City, had been naturally in close touch with its affairs during the period in question. He was, so to speak, a legal specialist, particularly acquainted with the facts,' or at least knowing where to look for them readily. There is evidence that the other attorneys and counsel had not seen fit to prepare themselves upon these facts, that they had indeed called'upon their clients to furnish the evidence, and that in this extremity, Hr. Burke and his associate were called into the case by the clients. Hr. Burke had been in association with Hr. Stevens, the original attorney, or counsel. But that' relationship had ended by the entry of the order of substitution of Grady, Smith and Crandall upon the consent of Hz-. Stevens and the adjustment of Hr. Stevens’ fees. When Hr Burke was again called upon and accepted the retainer, the relationship of client and attorney began de novo. He 'may have, driven a haz’d bargain with his clients, but there was no duress. 'They had discarded him and then found that they needed him, Won eomtclt that others could not have prepared the,case as he prepared it, perhaps with.greater labor and less facilities., • But -that his services from his experience and knowledge were peculiarly valuable, or were deemed essential,' affords; no reason for upsetting, the agreement in. that lie demanded -and- received a. very large compensation. On the other hand, the fee wás contingent, and this element cannot be. excluded in viewing the amount thereof. Moreover, if the men were reinstated they virtually gained life positions in a certain service. Not only is it clear that the issue' required: such work • as' Mr. Burke did- on the case, and that in the nature of things the work required long and arduous labor, but there is evidence that such labor was. done, that.it was well done, and that the attorney and Counsel with whom Mr. Burke became associated knew -that it was doing and reaped the benefit of it. Any lawyer knows that often the great, burden of the labor in the preparation of a case, is done not by him who tries it as a barrister, but by some other, who does not figure -at the' trial and whose voice is. not heard in the court, who-lias n.o recognition from outsiders-,.'but''to whose patient and painstaking labor the result is greatly, due, even though the client himself may not .realize it. We cannot see how the-appellants can now be heard to complain of.the amount of the compensation. For at the trial the plaintiff had witnesses at hand to testify, to the. fairness of the charge,- and' the court excluded them with the-statement. that it understood no attack was . based upvon. that ground. The. record shows that the learned ■ counsel for the defendants “indicated assent-to. this’’statement. We; may say that ¡the-learned counsel contended that- he made no such assent and sought, but in vain, to exclude it from the record, as: appears by Burke v. Baker (104 App. Div. 26).. We -refused to interfere with the record, under the rule of Ditmas v. McKane (87 App. Div. 54), and cases there cited. „ We1 remarked in the opinion d“ It is proper to add that we do riot deem the concessions'set out in this, amendment as injurious to "the.defendants as their counsel seem to suppose it to be. The'suit was brought to collect from, a large number of firemen their salaries for the year 1899, which, they Were- alleged to have-assigned to the plaintiff’s-intestate for value'received. .The answers- denied- the alleged assignments’ and pleaded further that they were procured without consideration by false, subtle and deceptive promises, which were specifically set forth. Giving all force which can properly be given to any admission involved in the colloquy which has been mentioned, it left and leaves counsel for the defendants still at liberty to insist upon every denial and-defense set up in their answers.” In Matter of Fitzsimons (174 N. Y. 23) the court say: “ In view of the fact that by express statute the right is conferred upon an attorney or counselor to regulate the amount of his compensation by agreement with his client, which is unrestrained and unlimited by law, we cannot see how such an agreement can be interfered with and held illegal until the question has been fully and fairly investigated and the facts relating to the transaction plainly established by a trial. The statute conferred upon the parties the right to make the contract, and conferred upon the court no authority to make it for them. If, however, upon a proper examination of the appellant’s claim, it shall be found that the agreement between himself and his client was induced by fraud, or that the compensation provided for was so excessive as to evince a purpose to obtain improper or undue advantage, the court may correct any such abuse.” (See, too, Boyd v. Daily, 85 App. Div. 581.) And in the latter case, speaking of the rule, the court also say: “ This is not an inflexible rule. It is a rule of equity, and should not be .rigorously applied where, owing to the death of the attorney, it .is impossible for his representati'vés to make ‘ full or plenary proof.’ ” (Citing authorities.)

We do not think that it was error to admit in evidence the record of the testator’s diaries in indication of the services rendered by him. (Leland v. Cameron, 31 N. Y. 115; Livingston v. Arnoux, 56 id. 507; Fisher v. Mayor, 67 id. 77.) The fact that there has been consolidation makes the total sum very large, but it must be remembered that the amount is to be paid by fifty-two defendants.

The judgment must be affirmed, with costs.

Jenks, Hooker, Gaynor, B.ich and Miller, JJ., concurred.

Judgment affirmed, with costs. 
      
      See Code Civ. Proc. § 66.— [Rep.
     