Eagan v. Eagan

64 N.Y.S. 836, 51 A.D. 635

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 25, 1900
• Status: Published

Opinion

PATTERSON, P. J.

The defendant was represented in this action by Mr. Emile Beneville, as his attorney, in all its progress from the interposition of the answer and during the trial, and until the entry of judgment in favor of the defendant. The services rendered were very effective and valuable. The plaintiff appealed from the judgment. The defendant then, desiring to change his attorney, made application to Mr. Beneville for a substitution. That was declined unless the defendant would compensate Mr. Beneville for the services he had rendered in the action. Thereupon the defendant moved the court to compel Mr. Beneville to consent to the substitution of an attorney in his place, and, upon that motion coming on to be heard, the court made an order sending it to a referee “to take proof as to the nature, extent, and value of any service performed in this action by Emile Beneville, Esq., as attorney for the defendant, and what amount, if any, is due him therefor, and also as to the existence of any lien of said Emile Beneville, Esq., in the above-entitled action, for services as attorney and counsel for the defendant therein, and, if any, the nature and extent thereof, and to report such proof or testimony, with his opinion thereon, to this court with all convenient speed.” Under that order the parties interested proceeded before the referee, who reported, in substance, that the services of Mr. Beneville in the action were worth the sum of $350. A motion was made to confirm the report, and after a hearing it was confirmed, and the substitution of an attorney for the defendant was allowed upon the payment by the defendant to Mr. Beneville of the sum of $350, and the referee’s and stenographer’s fees in this proceeding; such fees being fixed in the order,—the referee’s at $200, and the stenographer’s at $200.80. The defendant appeals from the order of confirmation.

The value of the services of Mr. Beneville, as fixed by the referee, is moderate, and, indeed, it is not disputed that such services were worth at least the sum of $350. The position taken by the defendant, however, is that, by virtue of an agreement existing between himself and Mr. Beneville, the latter was not entitled to any compensation for services rendered by him to the defendant; that Mr. Beneville was the occupant of one of a suite of offices in which the defendant carried on business (he also being a lawyer); and that in lieu of rent, and as a consideration for the use of the office and of a stenographer and typewriter, Mr. Beneville had agreed to render to the defendant such services as he (the defendant) might require in the conduct of his business. Mr. Beneville insisted that the contract between himself and the defendant was that he (Beneville) should only give such advice as might be required in the ordinary conduct of the defendant’s business, and that the arrangement did not extend to an obligation on his (Beneville’s) part to render, without compensation, services as attorney and counsel in litigated cases, or in the examination of titles. The referee was at liberty to find, and did find, that Mr. Beneville’s version of the agreement between himself and the defendant was the correct one, and we see no reason for disturbing the conclusion at which he arrived. But the order appealed from directs the defendant to pay specific amounts as referee’s and stenographer’s fees, and it is urged by the appellant that there was nothing whatever before the court to furnish a basis for the allowance of the amounts directed to be paid for those fees. We have, however, in the record, an affidavit of the referee, which the appellant has allowed to come into the case, and from which it would appear that his charges are proper. There was nothing before the court, nor is there anything in the record, which shows what was the value of the services of the stenographer, or whether the amount allowed him was reasonable or excessive. Therefore the order appealed from should be modified by striking out the provision directing a specific sum to be paid to the stenographer, and inserting instead thereof a provision that the defendant also pay fees of the stenographer upon the reference; such fees to be taxed by the clerk.

As modified, the order should be affirmed, without costs. All concur.