Silverman v. Pennsylvania R.

S.D. New York

Silverman v. Pennsylvania R.

141 F. 382, 1905 U.S. App. LEXIS 4898

District Court, S.D. New York·Decided November 11, 1905·Published·Cited by 7 cases

Opinion

HOLT, Circuit Judge.

A party has an absolute right to change his attorney at any time. It is discretionary with the court whether it should compel him to pay for services already rendered, especially in a case taken upon a contingent fee, or whether a substitution should be ordered, leaving the attorney to sue for his fee. Du Bois v. Mayor (C. C. A.) 134 Fed. 570. In this case the attorney made a written contract with the plaintiff to conduct this suit upon a contingent fee; “all disbursements to be advanced by” the attorney. In my opinion, by the law of New York, this contract was void for champerty. Coughlin v. N. Y., C. & H. R. R. Co., 71 N. Y. 443, 27 Am. Rep. 75; Stedwell v. Hartmann, 74 App. Div. 126, 77 N. Y. Supp. 498. And see Matter of Fitzsimons, 174 N. Y. 23, 66 N. E. 554; Jeffries v. Mutual Life Ins. Co., 110 U. S. 305, 4 Sup. Ct. 8, 28 L. Ed. 156. The contract was made in [383]*383Philadelphia, and it may be that it was valid by the law of Pennsylvania. But in my opinion the validity of the contract is so doubtful that this court should not order any money to be paid as a condition of substitution, but should leave the attorney to his suit.

The commissioner’s report is not confirmed, and an order of substitution is granted.

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HOLT, Circuit Judge.

A party has an absolute right to change his attorney at any time. It is discretionary with the court whether it should compel him to pay for services already rendered, especially in a case taken upon a contingent fee, or whether a substitution should be ordered, leaving the attorney to sue for his fee. Du Bois v. Mayor (C. C. A.) 134 Fed. 570. In this case the attorney made a written contract with the plaintiff to conduct this suit upon a contingent fee; “all disbursements to be advanced by” the attorney. In my opinion, by the law of New York, this contract was void for champerty. Coughlin v. N. Y., C. & H. R. R. Co., 71 N. Y. 443, 27 Am. Rep. 75; Stedwell v. Hartmann, 74 App. Div. 126, 77 N. Y. Supp. 498. And see Matter of Fitzsimons, 174 N. Y. 23, 66 N. E. 554; Jeffries v. Mutual Life Ins. Co., 110 U. S. 305, 4 Sup. Ct. 8, 28 L. Ed. 156. The contract was made in [383]*383Philadelphia, and it may be that it was valid by the law of Pennsylvania. But in my opinion the validity of the contract is so doubtful that this court should not order any money to be paid as a condition of substitution, but should leave the attorney to his suit.

The commissioner’s report is not confirmed, and an order of substitution is granted.

Silverman v. Pennsylvania R., 141 F. 382, 1905 U.S. App. LEXIS 4898 (S.D.N.Y. 1905).

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