In re Bowles

New York Supreme Court

In re Bowles

12 N.Y.S. 468, 35 N.Y. St. Rep. 608, 58 Hun 609, 1890 N.Y. Misc. LEXIS 3326

DecidedDecember 29, 1890

StatusPublished

This text of 12 N.Y.S. 468 (In re Bowles) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re Bowles, 12 N.Y.S. 468, 35 N.Y. St. Rep. 608, 58 Hun 609, 1890 N.Y. Misc. LEXIS 3326 (N.Y. Super. Ct. 1890).

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Opinions

Daniels, J.

The appellant, in his capacity of an attorney, brought an action in favor of James E. Bowles as administrator against the Rome, Water-town & Ogdensburgh Railroad Company to recover compensation for the wrongful killing of the intestate. The plaintiff in the action was a resident [469]*469of the city of Philadelphia, and had'obtained letters of administration there upon the estate of the intestate; but, as these letters supplied him with no authority for maintaining the action, an application was made to the surro.gate of the county of Orleans, of which the intestate was a resident, for letters to be issued to him there. These letters were issued at the instance of, .and were obtained by, the attorney, Mr. Otis. The action was afterwards, and on the 18th of November, 1886, commenced against the railroad company ; and after that an agreement was entered into between the administrator and the attorney by which the latter was to receive in the way of compensation, exclusive of the costs, the sum of 25 per cent, of the recovery which should be had, and that was made an express lien upon the cause of action. The plaintiff in the action died in November, 1888, and a further application was then made on behalf of Susan N. Bowles for letters to be issued to her as the administratrix of the estate, and these letters were obtained from the surrogate in her behalf by Mr. Otis. The action proved to be successful, and the 25 per cent, mentioned in the agreement was received by him; but he made a further claim for the sum of $125, with interest thereon, for his services in taking out the first letters of administration, and the further sum of $50, for obtaining the second letters issued, and the further sum of $50, for his services in taking out full letters. The court, at the special term, considered that these services were incidental to the employment for which the 25 per cent, was to be received, and denied the application, and from that order the appeal has been brought.

For the charge for procuring the letters of administration to James R. Bowles, there seems to be no legal foundation. Those services had been fully performed before the agreement was made by which the attorney was to be •compensated through this sum of 25 per cent. No reservation was then made, or intimation given, that any other charge or claim existed in favor of the attorney than for the services then rendered, and to be by him afterwards rendered in the action. If it liad been intended to, make the services rendered in obtaining the first letters of administration an additional charge against the plaintiff, or the recovery in the action, it is no more than reasonable to presume that it would in some form have been mentioned or brought forward or provided for at the time when this agreement was made, for its •object was definitely to declare the rights and obligations of the administrator -and his attorney. In the construction of the agreement the court is authorized to consider the circumstances under which it was made. The attorney was then proceeding with the prosecution of the action. He had become dissatisfied with a preceding agreement which had been made restricting his compensation to 15 per cent.; and, at his instance, this further agreement was made by the plaintiff in the action, and that was to pay him or allow him to retain out of the proceeds of the action, 25 per cent, of the recovery. And, if this preceding service had not been intended to be compensated by this proportionate part of the recovery, it is to be presumed ffhat it would have been made an exception from the language of the agreement; and, that not having been done, the inference is warranted that the :25 per cent, should compensate the attorney for all his past, as well as his prospective, services in the action, and that those rendered in obtaining the letters should form no exception in his favor. Biit, as to the other services, they were rendered after this agreement had been made, and to which consequently it could not apply. They were services in a different proceeding from the action itself, and not included, either expressly or constructively, within the operation or effect of the agreement. As to those services it was entirely inapplicable, and the attorney in no manner thereby deprived himself •of his right to compensation for their performance. No controversy has been presented drawing in question the propriety of the extent of these two •charges of $50 each, and as they were in no manner affected by this agree[470]*470ment, or any inferential construction to which it should be subjected, he is plainly entitled, out of the money which has been deposited to meet this controversy, to payment of these two items. The order, therefore, should be modified, directing payment to him of the sum of $100 out of the money on deposit with the trust company, and the residue should be paid over to the administratrix, and neither party should recover costs upon this appeal.

Van Brunt, P. J., concurs.

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Daniels, J.

The appellant, in his capacity of an attorney, brought an action in favor of James E. Bowles as administrator against the Rome, Water-town & Ogdensburgh Railroad Company to recover compensation for the wrongful killing of the intestate. The plaintiff in the action was a resident [469]*469of the city of Philadelphia, and had'obtained letters of administration there upon the estate of the intestate; but, as these letters supplied him with no authority for maintaining the action, an application was made to the surro.gate of the county of Orleans, of which the intestate was a resident, for letters to be issued to him there. These letters were issued at the instance of, .and were obtained by, the attorney, Mr. Otis. The action was afterwards, and on the 18th of November, 1886, commenced against the railroad company ; and after that an agreement was entered into between the administrator and the attorney by which the latter was to receive in the way of compensation, exclusive of the costs, the sum of 25 per cent, of the recovery which should be had, and that was made an express lien upon the cause of action. The plaintiff in the action died in November, 1888, and a further application was then made on behalf of Susan N. Bowles for letters to be issued to her as the administratrix of the estate, and these letters were obtained from the surrogate in her behalf by Mr. Otis. The action proved to be successful, and the 25 per cent, mentioned in the agreement was received by him; but he made a further claim for the sum of $125, with interest thereon, for his services in taking out the first letters of administration, and the further sum of $50, for obtaining the second letters issued, and the further sum of $50, for his services in taking out full letters. The court, at the special term, considered that these services were incidental to the employment for which the 25 per cent, was to be received, and denied the application, and from that order the appeal has been brought.

For the charge for procuring the letters of administration to James R. Bowles, there seems to be no legal foundation. Those services had been fully performed before the agreement was made by which the attorney was to be •compensated through this sum of 25 per cent. No reservation was then made, or intimation given, that any other charge or claim existed in favor of the attorney than for the services then rendered, and to be by him afterwards rendered in the action. If it liad been intended to, make the services rendered in obtaining the first letters of administration an additional charge against the plaintiff, or the recovery in the action, it is no more than reasonable to presume that it would in some form have been mentioned or brought forward or provided for at the time when this agreement was made, for its •object was definitely to declare the rights and obligations of the administrator -and his attorney. In the construction of the agreement the court is authorized to consider the circumstances under which it was made. The attorney was then proceeding with the prosecution of the action. He had become dissatisfied with a preceding agreement which had been made restricting his compensation to 15 per cent.; and, at his instance, this further agreement was made by the plaintiff in the action, and that was to pay him or allow him to retain out of the proceeds of the action, 25 per cent, of the recovery. And, if this preceding service had not been intended to be compensated by this proportionate part of the recovery, it is to be presumed ffhat it would have been made an exception from the language of the agreement; and, that not having been done, the inference is warranted that the :25 per cent, should compensate the attorney for all his past, as well as his prospective, services in the action, and that those rendered in obtaining the letters should form no exception in his favor. Biit, as to the other services, they were rendered after this agreement had been made, and to which consequently it could not apply. They were services in a different proceeding from the action itself, and not included, either expressly or constructively, within the operation or effect of the agreement. As to those services it was entirely inapplicable, and the attorney in no manner thereby deprived himself •of his right to compensation for their performance. No controversy has been presented drawing in question the propriety of the extent of these two •charges of $50 each, and as they were in no manner affected by this agree[470]*470ment, or any inferential construction to which it should be subjected, he is plainly entitled, out of the money which has been deposited to meet this controversy, to payment of these two items. The order, therefore, should be modified, directing payment to him of the sum of $100 out of the money on deposit with the trust company, and the residue should be paid over to the administratrix, and neither party should recover costs upon this appeal.

Van Brunt, P. J., concurs.

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12 N.Y.S. 468, 35 N.Y. St. Rep. 608, 58 Hun 609, 1890 N.Y. Misc. LEXIS 3326, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-bowles-nysupct-1890.