Rahm v. Americana Co.

160 A.D. 875, 144 N.Y.S. 1071

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 15, 1913
• Status: Published

Opinion

Dowling, J.:

The moving papers show that plaintiff, under an agreement with his client Magruder, is entitled to recover for his professional services a sum equal to thirty-three and one-third per cent of any sum that might be recovered by suit, settlement or otherwise, upon a claim against defendants. The petitioner shows that he has issued a summons in the action of Magruder against the Americana Company et al. He alleges upon information and belief that the defendants settled the litigation with his client without his knowledge or consent. It, however, appears from the affidavit of Phineas M. Bond, the secretary and assistant treasurer of the defendant corporation, who has charge of the records thereof, as well as knowledge of all disbursements made by them, that “ no money or other consideration has been paid the said plaintiff by the defendant in settlement of this action, nor any settlement thereof whatsoever made with him by the defendants.” Under these conditions this order cannot be sustained, based, as it is, upon the theory that a settlement has actually been made in some form or other by his client with the defendants without his consent. The order will, therefore, be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs. Ingraham, P. J., Clarke, Scott and Hotchkiss, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.