Harkavy v. Zisman

Appellate Terms of the Supreme Court of New York

Harkavy v. Zisman

96 N.Y.S. 214

CourtAppellate Terms of the Supreme Court of New York

DecidedNovember 29, 1905

StatusPublished

This text of 96 N.Y.S. 214 (Harkavy v. Zisman) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Harkavy v. Zisman, 96 N.Y.S. 214 (N.Y. Ct. App. 1905).

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Opinion

SCOTT, P. J.

The contract of retainer is so badly expressed that it is not easy to gather just what it means. It appears, however, that it was dictated by defendant himself, a lawyer; that plaintiff could not read English, and knew nothing about what she signed, except as defendant explained it to her. She is therefore entitled to the most favorable reading of which the language is capable. So read, it appears to provide that plaintiff shall bear the costs in the [215]*215first instance, and that the amount collected, less whatever costs defendant might pay out, should be equally divided. She did advance $35, and there is no evidence that the costs legitimately chargeable against her amounted to more than that sum. While plaintiff admittedly consented to a settlement for $275, there is no credible evidence that she was consulted about or consented to a settlement for a smaller sum, or to the employment of other counsel. Nor is it made to appear that defendant could not with diligence have recovered the whole $275, if not from the bank, from the defendant in the action, or that it was necessary to retain counsel. If the reduction of the actual recovery for $275 to $200 was justifiable, the burden rested on defendant to prove, this fact, and he did not sustain the burden satisfactorily. The jury quite reasonably found against him on his claim that a new agreement was made between plaintiff and himself whereby she agreed that he might keep the whole recovery.

We find no errors in the record of the trial which require a reversal in the interests of justice. The judgment, however, probably by inadvertence, included too large a sum for interest. The defendant became liable to pay interest only when he had actually collected the money. The evidence is that this was on September 18', 1903, and the trial was on May 17, 1905. The interest on $137.50 for one year and eight months is only $13.75, and not $17.18, which was the amount allowed for interest in the judgment.

The judgment should therefore be reduced to the sum of $168.25, and, as so modified, affirmed, with costs. All concur.

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SCOTT, P. J.

The contract of retainer is so badly expressed that it is not easy to gather just what it means. It appears, however, that it was dictated by defendant himself, a lawyer; that plaintiff could not read English, and knew nothing about what she signed, except as defendant explained it to her. She is therefore entitled to the most favorable reading of which the language is capable. So read, it appears to provide that plaintiff shall bear the costs in the [215]*215first instance, and that the amount collected, less whatever costs defendant might pay out, should be equally divided. She did advance $35, and there is no evidence that the costs legitimately chargeable against her amounted to more than that sum. While plaintiff admittedly consented to a settlement for $275, there is no credible evidence that she was consulted about or consented to a settlement for a smaller sum, or to the employment of other counsel. Nor is it made to appear that defendant could not with diligence have recovered the whole $275, if not from the bank, from the defendant in the action, or that it was necessary to retain counsel. If the reduction of the actual recovery for $275 to $200 was justifiable, the burden rested on defendant to prove, this fact, and he did not sustain the burden satisfactorily. The jury quite reasonably found against him on his claim that a new agreement was made between plaintiff and himself whereby she agreed that he might keep the whole recovery.

We find no errors in the record of the trial which require a reversal in the interests of justice. The judgment, however, probably by inadvertence, included too large a sum for interest. The defendant became liable to pay interest only when he had actually collected the money. The evidence is that this was on September 18', 1903, and the trial was on May 17, 1905. The interest on $137.50 for one year and eight months is only $13.75, and not $17.18, which was the amount allowed for interest in the judgment.

The judgment should therefore be reduced to the sum of $168.25, and, as so modified, affirmed, with costs. All concur.

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Bluebook (online)

96 N.Y.S. 214, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harkavy-v-zisman-nyappterm-1905.