Klein v. Utz

143 N.Y.S. 1099

• Court: Appellate Terms of the Supreme Court of New York
• Decided: November 13, 1913
• Status: Published

Opinion

SEABURY, J.

The plaintiff, an attorney at law, sues to recover $250, the balance remaining unpaid under a written contract. The written contract provided that the defendant should pay the plaintiff “the sum of $300 in cash as a retainer,” and in addition thereto a percentage of the amount recovered. The defendant paid the plaintiff $50 in cash, instead of $300 agreed upon.

Upon the trial the plaintiff was permitted to testify that the agreement between them was that she would pay plaintiff $300 in the event that she recovered the money for which she engaged the plaintiff to recover in an action. Thus the written agreement was regarded as amounting to nothing, and the case was submitted to the jury to determine whether the agreement was that the plaintiff should have $300 in cash, or whether that sum should be contingent upon the success of a suit which he was employed to bring. The matter having been left to the jury, they also disregarded the written contract, and rendered judgment for the defendant. The verdict of the jury was so clearly contrary to the evidence as to lead to the conclusion that it must have been induced by prejudice, or some consideration other than the evidence.

Judgment reversed, and new trial ordered, with costs to appellant to abide the event. All concur.