Hand v. Church

46 N.Y. Sup. Ct. 303

• Court: New York Supreme Court
• Decided: January 15, 1886
• Status: Published

Opinion

Landon, J.:

Among the items for which the plaintiffs sought recovery was a charge of $1,000 for services in the case of Van Leuven v. Church. The defendant, as a witness in his own behalf, after giving ®.n account of the action and of the services rendered by the plaintiffs in it, was asked, “ What, in your opinion, is the fair value of the services rendered by the plaintiffs in that action ? ” The plaintiffs objected that the witness was incompetent to give an opinion. The witness was then examined as to his competency, and he testified that he was not a practicing lawyer; that lie had been admitted to the bar of the Common Pleas in Allegany county ; that he had aided in the trial of his own cases and in cases in which he had been the agent of others; that during thirty years he had upward of two thousand cases in which he had an interest, mainly in actions of ejectment or upon covenants in leases; that for thirty years he had knowledge of the amount of charges rendered by and paid to attorneys and counsel for services, including charges made by plaintiffs in cases other than his own, and a pretty good general knowledge of the subject. The referee sustained the objection and the defendant excepted. This we think was error. The competency of the witness did not necessarily depend upon his being a lawyer, but upon the fact whether he had been so instructed by experience as to have peculiar sources of knowledge to guide him upon the subject of the value .of these professional services, fitting him to answer with more accuracy than others. (Clark v. Baird, 9 N. Y., 190; Pullman v. Corning, 14 Barb., 179; S. C., 9 N. Y., 93; Clark v. Bruce, 12 Hun, 274; Woodward v. Bugsbee, 2 id., 128.) Other persons besides professional men have knowledge of the value of professional services. (Field, J., in Head v. Hargrave, 105 U S., 49.) We do not see why those who often procure and pay for such services should not acquire by experience considerable knowledge of their value. It may not he perfect, but the courts do not insist upon the highest knowledge as the test of competency. (Hammond v. Varian, 54 N. Y., 398; Roberts v. Johnson, 58 id., 613 )

We think the referee erred in allowing interest upon the entire account rendered by the plaintiff to defendant, July 17, 1876, from that date. The subsequent transactions of the parties with reference to the bill repel the idea that it became an account stated with respect to the items defendant chose to dispute. One of the plaintiffs, September 30, 1878, referring to the bill, asked the defendant if it was not convenient to pay the bill to give some acknowledgment of it. The defendant answered that he had not taken time to examine the bill and did not know that all the charges were right. The plaintiff then said he would draw the acknowledgment in such a way as not to preclude the defendant from questioning the amount. The plaintiff then drew the following memorandum upon the copy of the bill and the defendant signed it:

“I hereby acknowledge my indebtedness to Hand & Hale for the items of within bill, subject to modification and correction as to amount of chai’ges.

“ WALTER S. CHURCH.

“ Dated September 30, 1878.”

Whatever presumption might arise from the rendering of the bill by the plaintiffs to the defendant, and the defendant’s failure to object to it within a reasonable time, was controlled by the arrangement between the parties. The defendant thereby acknowledged his indebtedness upon account of every item of that account, and in consideration thereof had conceded to him by the plaintiffs the privilege to correct and modify the amount claimed for every item which he might choose to dispute. He claimed and exercised that. privilege as to items aggregating $1,900. The amount of these items remained .unliquidated until determined by the trial. The charges were for counsel fees. The defendant could not, as in the case of articles of merchandise, have recourse to a fixed market value to ascertain the amount of his indebtedness.. In Adams v. Fort Plain Bank (36 N. Y., 255), and Mygatt v. Wilcox (45 id., 306), it was held that interest could be recovered in an action by an attorney upon his account for services. But, as pointed out in White v. Miller (78 id., 393), and in Gallup v. Perue (10 Hun, 525), the account appears to have been substantially liquidated, the liability to pay alone being litigated. In the case last cited interest upon an attorney’s account was refused. No bill, however, had been presented. Here, as in Smith v. Velie (60 N. Y., 106), there-was no agreement as to the measure of compensation of the items in dispute, and there was no. fixed market value by which the rate of compensation could be determined. In that case interest was not allowed, even from the date of the commencement of the action. In McCollum v. Seward (62 id., 316) interest was allowed upon an unliquidated account for services rendered from the commencement of the action. Also, in Mercer v. Vose (67 id., 56). In White v. Miller, these and other cases are reviewed, and it is objected that if the claim is so unliquidated and uncertain that a demand cannot set the interest running, that the commencement of an action, which is also a demand, cannot set it running. That, however, was an action sounding in damages.

It was not pointed out why a plaintiff who establishes his right to recover upon an account cannot have his recovery as of the date of the commencement of the action; interest would seem to be his due, in order to effectuate such recovery. As to three items men•ioned, we think the interest should have been limited to the date of the commencement of the action. The balance of the items in the same bill, however, does not appear to have been ever disputed, either as to the amount or the light ó f recovery. T.he amount of these items was, therefore, payable when the bill containing them was first presented. The referee properly allowed interest upon them from that date. The other objections of the defendant'do not call for special remark.

The judgment should be reversed and a new trial granted, reference discharged, costs to abide the event.

Bocees, J., concurred ; Learned, P. J., not acting..

Judgment reversed, new trial granted, referee discharged, costs to abide event.