
    Benjamin G. Hitchings, Appellant, v. Ellen Van Brunt, Adminstratrix, etc., of John H. Hubbard, deceased, Respondent.
    Where an attorney and counsel agreed with his client to conduct an appeal from the surrogate to the Supreme Court and argue it there, and the client agreed thus: “If he succeeds, and the decision of the surrogate is reversed by the Supreme Court, I am to pay him $1,000,” in addition to disbursements, etc.; “ and it is understood that in case it should be necessary to contest the case in the Court of Appeals, said Hitchings is .to have such further compensation, for such further services, as may be agreed upon,” “ and it is also further agreed that I will not settle the case with the other parties without his approval, and, in case of doing so, am to be immediately liable for his full compensation as herein providedand such appeal was argued, but the decree of the surrogate was affirmed, and afterward, by authority of the client, an appeal was taken to the'Court of Appeals, pending which appeal the client settled the case without the knowledge or consent of his counsel; —
    
      JBeld, the client is not liable for the $1,000. On failure to reverse the decree of the surrogate in the Supreme Court, all claim to the $1,000 was at an end, and the restriction of the right of the client to settle no longer operated.
    The appeal having been taken to the Court of Appeals by the,client’s consent, the latter was liable for the services rendered therein.
    Where the court below give a plaintiff his election to remit a part of the sum recovered and take judgment of affirmance for the residue, or to submit to an order for a new trial, and, instead of remitting, he allows the order granting a new trial to be made, and appeals therefrom to the Court of Appeals, giving the usual stipulation that if the order be affirmed, judgment absolute may be entered against him, this court cannot relieve him from his stipulation on affirming the order. In such case the defendant is entitled to final judgment, however clear it may be that the plaintiff was entitled to recover the amount for which he was in the court below permitted to have judgment.
    Appeal from order of Supreme Court in General Term, reversing judgment for the plaintiff and ordering a new trial, unless the plaintiff should reduce the recovery to two hundred dollars, remitting the excess.
    The defendant’s intestate had contested the probate of a codicil to his father’s will, before the surrogate of Kings county. The plaintiff was his attorney and counsel. The codicil was admitted to probate. Thereupon the following agreement was entered into:
    “In the Matter of the Will and Codicil of Elias - Hubbard : —
    “ Whereas, Benjamin G. Hitchings, as my counsel, has .attended'before the surrogate, to contest the probate of the codicil in this case, and the surrogate has decided to admit the same to probate, and I am desirous of having the same appealed; now I do hereby agree with said Benjamin Gr. Hitchings as follows: said Hitchings is to attend to carrying up the said case and argue it before the Supreme Court, and, in case he succeeds, and the decision of the surrogate is reversed by the Supreme Court, I am to pay him for his compensation one thousand dollars, in addition to such costs and allowances as may be granted by the court to be paid out of the estate, and in addition to the disbursements which I am to pay myself when called upon.
    “ And it is understood that in casé it should be necessary to contest the case in the Court of Appeals, said Hitchings is to have such further compensation as may be just for such further services, or as may be agreed upon.
    “ And it is also agreed that I will not settle the case with the other parties without his approval, and, in case of doing so, am to be immediately liable for his full- compensation as herein provided.
    “ Gravesend, L. I., Hov. 22, 1864.
    “ JOHH H. HUBBARD.”
    The appeal to the Supreme Court was made, the case there conducted and argued by the plaintiff, and the decree of the surrogate was affirmed.
    Afterward, by direction of Hubbard, an appeal was taken to the Court of Appeals, but, about four or five days thereafter, Hubbard, without consulting the plaintiff, made a" settlement of the matter with the other parties in interest.
    Thereupon this action was brought by the plaintiff against Hubbard, to,recover the $1,000, and his disbursements, and a reasonable compensation for Ms services on the appeal to the Court of Appeals, and on the trial had a verdict for $1,200.
    The charge of the judge on the trial was to the effect, that, the defendant having settled the case after it had been taken to the Court of Appeals, the plaintiff was entitled to recover under the agreement $1,000, for the services rendered in the court and in the Supreme Court, as well as his disbursements (deducting $100 already paid toward such disbursements), and also a fair compensation for certain other services, testified to have been rendered for the defendant.
    Due exception was taken by the defendant, and a motion for a new trial on the minutes was denied, and, on appeal from the judgment entered on the verdict, the General Term reversed the judgment and ordered a new trial, unless the plaintiff elected to remit the $1,000, and part of the allowance included in the taxed costs, and, if the court reduced the judgment, as thus provided, then the judgment so reduced and the order denying a new trial were affirmed without costs on appeal.
    Instead of consenting to remit the $1,000, etc., the plaintiff stipulated, and appealed to this court.
    
      Samuel Sand, for the appellant.
    
      Philip S. Crooke, for the respondent.
   Woodruff, J.

The single question raised on the present appeal is, what is the true construction and legal effect of the agreement seth forth in the complaint ? Or, reducing it to practical application, did the defendant’s intestate, by settling his controversy after an appeal had been taken to the Court of Appeals, become liable to pay to the plaintiff the $1,000 mentioned in the agreement? The judge at the trial, charged that he did. The court in General Term have decided that he did not.

In my opinion the agreement between the parties contemplated, and only contemplated, an appeal by the intestate to the Supreme Court and an agreement of such appeal there, and fixed $1,000 as compensation to the plaintiff in the event of success on that appeal.

It is true, that it recognized the possible necessity, in order to obtain the benefit of that success, of contesting the case in the Court of Appeals, for, although successful in the Supreme Court, it was in the power of the adverse party to compel an argument in the Court of Appeals, before such success would be available, and, in that contest, unless the claim of the intestate should be urged in the court of last resort, his success in the Supreme Court would be defeated. In such event the agreement intended that the plaintiff should conduct the appeal in the Supreme Court, and if successful, his right to have of the defendant $1,000, was absolute, and it would be his duty to maintain a successful decision if necessary in the Court of Appeals, and for that he was to have a further reasonable compensation, and this he would be entitled to have, whatever the decision of the Court of Appeals might be. But I find nothing in the agreement that imports obligation on the part of the intestate to litigate further, if the decision of the Supreme Court should be adverse to him.

The words of the agreement referring to a possible necessary contest in the Court of Appeals, are that in such case the said Hitchings is to have “further” compensation. “Further compensation” clearly means additional to some'compensation before mentioned, and this further compensation is not made to depend upon success in the Court of Appeals. It therefore assumes that the $1,000 has been earned by success in the Supreme Court, and provides for further compensation in addition thereto, should it be necessary to contest the case in the higher court.

The argument for the appellant makes final or ultimate success in defeating the probate, the test of the title of the plaintiff to the $1,000. This must be the result of the argument, or it makes a very unfair and one-sided instrument. The argument is, the object of the intestate was to defeat the probate; if, therefore, the plaintiff, though unsuccessful in the Supreme Court, succeeded in the Court of Appeals, the object of the intestate was accomplished, and he must pay not only the reasonable compensation for services in the Court of Appeals, but also the $1,000 for the conduct of the appeal in the Supreme Court.

The same reasoning precisely may be employed on behalf of the respondent. The object of the intestate was to defeat the probate, and if you had succeeded in the Supreme Court, but the other parties appealed, and in the Court of Appeals the probate was affirmed, the object of the intestate would have failed, and you, therefore, would not be entitled to the $1,000.

To this latter claim the appellant would very properly reply (the words of the contract) : “ If the decision of the surrogate is reversed by the Supreme Court, I am to pay him for his compensation one thousand dollars.-”

To the former claim the respondent may properly reply : “ As the decision of the surrogate was not reversed by the Supreme Court, I am not to pay him for his compensation the one thousand dollars.”

In short, under the plain terms of the first two paragraphs in the agreement, the condition upon which the $1,000 was payable, would not be satisfied unless the decision of the surrogate was reversed by the Supreme Court. ■

It is true, that the words '' contest the case in the Court of Appeals,” may, by a liberal construction, import “ litigate the question either as appellant or respondent,” but there are two reasons for confining its meaning here to resistance to an affirmative attack or claim.

It is first used in the agreement in that sense, viz., resistance before the surrogate, of the affirmative endeavor to establish the codicil. It is satisfied, when used in the second paragraph, by the same import, resistance to an affirmative endeavor in the Court of Appeals to reverse the success he has had in the Supreme Court.

But, more strongly still, on the determination in the Supreme Court, adverse to the intestate, no compensation had been earned, provision for “ further compensation ” was,. therefore, not apt to express a compensation for the intestate’s appeal to the Court of Appeals.

For example, suppose the appeal which was actually taken to the Court of Appeals had been argued, and the judgment of the Supreme Court had been affirmed, the intestate would have been unsuccessful throughout.

The agreement either contemplated such an exigency or it did not. If it did not, then there is an end of the idea, that the “ contest in the Court of Appeals ” was on an appeal by the appellant after the plaintiff had failed to “ succeed ” before the Supreme Court. And to say that it did contemplate and provide for that exigency, is to say that “ further compensation ” means a compensation in addition to no compensation, for, clearly, either failure could not entitle the plaintiff to the $1,000.

To say that the agreement secured to the plaintiff the $1,000, if he should be finally successful in defeating the probate, notwithstanding he failed in the Supreme Court, ■involves this consequence, viz., that the plaintiff would have a right to carry the case to the Court of Appeals, whether, after the decision in the Supreme Court, the intestate was willing or not. I think it clear, that the parties did not themselves so understand it. On the contrary, the plaintiff sought the intestate and a consultation was had, and it was by direction of the intestate that the appeal was taken.

In this, the parties acted according to what appears to me to be the intent and meaning of the agreement, viz., that, upon failure to succeed in the Supreme Court, the office and effect of the agreement was at an end. The intestate was at liberty to appeal to the Court of Appeals or not, at his pleasureand, if he saw fit to appeal, he was entirely at liberty to employ the plaintiff to prosecute that appeal, or to employ other counsel for that purpose.

If he chose to employ the plaintiff, as he did, the service which the plaintiff rendered was not rendered under the previous agreement, but upon a new retainer. And it is not by force of such prior agreement that he is entitled to compensation, but by reason of his employment to prosecute an appeal after an adverse decision in the Supreme Court, an employment not stipulated for in the agreement at all.

If this be a correct view of the meaning and effect of the agreement, then its concluding clause, which provided, that, if the intestate should settle the case with the other parties without the approval of the plaintiff, the former should be liable to the plaintiff “ for his full compensation as herein provided,” does not affect the result.

That clause must be construed with reference to the other provision. The intestate must not by a settlement deprive the plaintiff of his- right to the $1,000, or his opportunity to earn it. But, when that opportunity was gone, by his failure to succeed, the condition of things in view of which this stipulation was made had ceased.

The claim of the appellant here is, that this language is to be construed literally; and, as the intestate has settled with the other parties, the $1,000 is payable. Such a claim involves the absurdity that the intestate could never settle with the other parties, without paying the plaintiff the $1,000, however unsuccessful the litigation might be. This stipulation meant that the plaintiff should have his $1,000, upon the conditions expressed, or as provided in the agreement, and no settlement should be made by the intestate to prevent it, except upon a liability to pay the plaintiff that sum.

I repeat, the agreement stipulated for a hearing in the Supreme Court, and for a possible necessity of maintaining success there in the Court of Appeals. The condition upon which the $1,000 was to be paid, as provided in the agreement, has never happened.

For these reasons, I think the judgment and order of the General Term, of the Supreme Court should be affirmed, and judgment absolute for the respondent be rendered, pursuant to the plaintiff’s stipulation. The plaintiff, by his stipulation, has waived his right now to elect to take judgment for the sum which the Supreme Court tendered to him at his option, to avoid a new trial. The order was right, and it was not %>er se appealable. In order to secure an appeal, the plaintiff saw fit to stipulate, that, if this court should affirm' the order, judgment absolute for the defendant should be entered. We cannot, now, in the face of that stipulation, say that judgment absolute for the plaintiff shall be rendered. The plaintiff was not at liberty thus to speculate on the chances of an appeal,—proposing to himself that he should gain something if the order is reversed, but lose nothing in any event. He might have gone to a new trial, and from a ruling which secured to him only $200 and costs (which the Supreme Court have tendered him), have come up to this court on exception, and been heard, in which case he would have retained judgment for the reduced amount which he has now, by voluntary stipulation, waived. (18 N. Y. 493.) The plaintiff may have acted unwisely by stipulating, but we cannot relieve him. He has taken and used the privilege which he could only obtain by stipulating to submit to final judgment for the defendant, and he must abide by the stipulation.

Bacon, J.

The agreement upon which this action is brought is one between an attorney and his client,.providing for a large compensation upon the success of the former in conducting a cause, where the client was assured, that the case was one which not only stood very strong for him, but in which he must succeed. In considering such a transaction, it may not, perhaps, be necessary to go to the extreme length of some of the cases which hold, that, where a security is thus taken, the absolute presumption of unfairness arises, wherever the relation of counsel and client exists. (Evans v. Ellis, 5 Denio, 640; Howell v. Ransom, 11 Paige, 538.) But it is proper to invoke the well settled doctrine announced by this court in Nesbit v. Lochman (34 N. Y. 169), that the law looks upon such a transaction with great suspicion; that it will be regarded with jealousy, and scrutinized with care, and that the presumption is against the propriety of the transaction.

This rule, it is manifestly just to take into the account, as applicable to the interpretation of the instrument in question. If the meaning is not transparently obvious, if ikwill admit of a construction favorable to the client, he is entitled to that construction, not only upon the grounds above suggested, but upon the familiar principle, that the construction of an instrument produced by one, as the essential foundation of his cause of action, is to be taken most strongly contra proferentem,, above most, if not all other, classes in the community, a lawyer, to whom important interests are intrusted, and in whom great confidence is reposed, should be careful not to expose himself to the imputation of exacting hard terms from, or taking advantage of, either the necessity or the ignorance of his client, to secure a benefit to himself.

How what did the agreement provide for? The plaintiff, as the counsel of the defendant, had contested the probate of the codicil of Elias Hubbard’s will before the surrogate, and been defeated. The client was persuaded into trying the experiment of an appeal to the Supreme Court, upon an assurance of success, and agreed to pay liberally for such a result. The instrument accordingly provided, that such an appeal should be taken, and the plaintiff was to attend to and argue the same, and, in case of success, and the decision of the surrogate was reversed by the Supreme Court, the compensation of the attorney was to be $1,000, in addition to such costs and allowances as might be granted by the court. There was another clause in the agreement, that, in case it should be necessary “to contest” the case in the Court of Appeals, the plaintiff should have such further compensation as might be just, and a final provision, that the defendant was not to settle the case without the approval of the plaintiff, and, in case he did so settle, was to be immediately liable • for full compensation, “as herein provided.” The construction of the main and important part of the instrument admits of no doubt. It provided for compensation, upon a clearly specified contingency, to wit, success in the appeal to the Supreme Court. If the plaintiff had succeeded on that appeal, he would have been entitled, as is remarked by the judge in' the court below, to that sum, even if the case had been, appealed by the unsuccessful party, and the judgment of the Supreme Court had been reversed. But, as he was not successful on the appeal, he was entitled to nothing under his agreement, which had performed its whole office the moment the Supreme Court made its decision upon that appeal. The final clause in the agreement cannot be construed to revive the claim which had become defunct by reason of the failure of the event, on the occurrence of which alone a right to demand and a duty to pay arose. The “full compensation” therein spoken of was the compensation “ herein specified,” that is, provided for in the former part of the agreement, which was $1,000, in case of success in the Supreme Court. The clause was applicable by the clearest implication to the cause in the Supreme Court, and to a settlement which might be made while the case was still pending there, and undetermined, and it ceased to be operative the moment the decision there was made, and the appeal had proved unsuccessful.

I agree with the counsel for the respondent, that the word “ contest,” in the second clause of the agreement, was understood and intended by the parties to apply to the case of a possible contest, arising upon an appeal by the parties who were upholding the codicil, in case the surrogate’s decree should be reversed in the Supreme Court. Both the plaintiff and defendant obviously counted on success in that court, and the contest in view was, as it seems to ine, one against an adversary who should, by a further appeal, threaten to deprive them of the fruits of their anticipated victory. The agreement will admit of this construction, without doing violence to its language, and, in a case of this kind, I think the defendant is entitled to such an interpretation. The instrument did not contemplate an appeal to be presented by the plaintiff, on behalf of the defendant, after he had been defeated in the Supreme Court. This was a state of affairs not within the expectation of the parties, and not provided for in the agreement.

The counsel for the defendant was therefore right in asking the judge upon the trial to charge:

1. That the compensation of $1,000 was only in case the plaintiff succeeded in the Supreme Court.
2. That the- agreement in the latter clause, that, in case of settlement by the defendant, he was to be immediately liable for full compensation as herein provided, meant such compensation as was specified in the agreement, viz., $1,000 in case the plaintiff succeeded in the Supreme Court, and not otherwise.

These requests were refused, and the plaintiff’s counsel excepted. The refusal thus to charge was, in my view, erroneous. For this error the judgment was in the Supreme Court reversed, and a new trial ordered; and that judgment should be affirmed.

In the judgment of the Supreme Court, a qualification was annexed, providing for an affirmance of the judgment rendered on the verdict, on the condition that the plaintiff remitted all but $200 of the money, and the counsel for the appellant now asks this court, if we come to the conclusion that the order for a nejv trial was right, to give him the benefit of that condition here, and still allow the judgment to stand for $200. I think the plaintiff is too late to ask the benefit of this condition. He did not consent to the reduction, but appealed to this court, and on taking his appeal, he stipulated that if the order should be affirmed, judgment absolute should be rendered against him. The case of Lanman v. Lewiston R. R. Co. (18 N. Y. 493), holds explicitly that an appeal to this court from an order granting a new trial, lies only when the party obtaining the verdict is content, if he cannot sustain it; to fail wholly in his action or defense; and that, where the order is for a new trial, unless the plaintiff will remit a part of his verdict, he cannot appeal and retain the benefit of the alternative judgment for a reduced amount.

The order should be affirmed, and judgment absolute ordered for the defendant, with costs.

Judgment affirmed.  