Garr v. Mairet

1 Hilt. 498

• Court: New York Court of Common Pleas
• Decided: December 15, 1857
• Status: Published

Opinion

Brady, J.

The plaintiff, who is an attorney and counsellor of the court, sued the defendants to recover for services rendered in his professional character. Before the referee, no proof of the value of the services rendered was given, except ihe judgment rolls, showing the costs taxed against tbe parties sued by the de fen dan ts. Prior to the Code, there is no doubt the rule was, that the amount of costs taxed was the measure of compensation to tbe attorney, as between him and bis client (McFarland v. Crary, 8 Cowen, 253 ; Brady v. City of New York, 1 Sand. 583, 584); but, by tbe Code, tbe rule was changed, leaving tbe attorney and client to make their agreement as to compensation. On authority, although perhaps tbe rule referred to is a fair one and should still prevail where no express agreement has been made, costs are no longer the measure of compensation, and proof of value of the service is required. Code, 303 ; Easton v. Smith, 1 E. D. Smith, 318 ; Stow v. Hamlin and others, 11 How. 452 ; Moore v. Westervelt, 3 Sandf. 762. The referee erred, therefore, and the judgment should be set aside and the cause referred back. Costs to abide event.

Ordered accordingly.