Smith v. Hoctor

Appellate Terms of the Supreme Court of New York

Smith v. Hoctor

51 Misc. 649, 99 N.Y.S. 843

CourtAppellate Terms of the Supreme Court of New York

DecidedJuly 1, 1906

StatusPublished

This text of 51 Misc. 649 (Smith v. Hoctor) 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

Smith v. Hoctor, 51 Misc. 649, 99 N.Y.S. 843 (N.Y. Ct. App. 1906).

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Opinion

Gildebsleeve, J.

The defendant herein had a cause of action for personal injuries against one Kohn. He retained plaintiffs, a firm of lawyers, to prosecute the action. Plaintiffs had consultations about the case, prepared and served the summons and complaint, put the cause on the calendar, and made preparation for the trial. The said defendant herein then pretended to find fault with the management of some of his other matters by plaintiffs, and got another lawyer substituted in place of these plaintiffs as his attorney in the Kohn case. His real motive would seem to have been the expectation that he could make a better bargain as to his share of the recovery. The plaintiffs brought this action to recover the reasonable value of their services in the Kohn case. The justice found for the defendant, on the theory, apparently, that plaintiffs could not recover on a quantum meruit, because they had been shown substantially guilty of malpractice. The plaintiffs appeal. We think the judgment is against the evidence. It is true the gentleman who was substituted in place of plaintiffs, in the Kohn case, expressed his opinion that plaintiffs’ services were of no value, but an absolute detriment to defendant in his case against Kohn, which was subsequently settled for six hundred dollars. The plaintiffs, however, showed what they had done, and brought a brother lawyer who put a value of two hundred and fifty dollars upon their services to defendant. The [650]*650dissatisfaction of defendant with plaintiffs was not founded upon any alleged misconduct of plaintiffs in the Kohn case, but, as we have seen, upon their alleged mismanagement of another matter unconnected with the Kohn case. Defendant, also, as we have above intimated, seems chiefly to have been actuated by the hope of getting the legal work done a little cheaper. We think, on the whole case, the ends of justice require a new trial.

McCall, J., concurs; Leventeitt, J., concurs in result.

Judgment reversed and a hew trial granted, with costs to appellants to abide the event.

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Gildebsleeve, J.

The defendant herein had a cause of action for personal injuries against one Kohn. He retained plaintiffs, a firm of lawyers, to prosecute the action. Plaintiffs had consultations about the case, prepared and served the summons and complaint, put the cause on the calendar, and made preparation for the trial. The said defendant herein then pretended to find fault with the management of some of his other matters by plaintiffs, and got another lawyer substituted in place of these plaintiffs as his attorney in the Kohn case. His real motive would seem to have been the expectation that he could make a better bargain as to his share of the recovery. The plaintiffs brought this action to recover the reasonable value of their services in the Kohn case. The justice found for the defendant, on the theory, apparently, that plaintiffs could not recover on a quantum meruit, because they had been shown substantially guilty of malpractice. The plaintiffs appeal. We think the judgment is against the evidence. It is true the gentleman who was substituted in place of plaintiffs, in the Kohn case, expressed his opinion that plaintiffs’ services were of no value, but an absolute detriment to defendant in his case against Kohn, which was subsequently settled for six hundred dollars. The plaintiffs, however, showed what they had done, and brought a brother lawyer who put a value of two hundred and fifty dollars upon their services to defendant. The [650]*650dissatisfaction of defendant with plaintiffs was not founded upon any alleged misconduct of plaintiffs in the Kohn case, but, as we have seen, upon their alleged mismanagement of another matter unconnected with the Kohn case. Defendant, also, as we have above intimated, seems chiefly to have been actuated by the hope of getting the legal work done a little cheaper. We think, on the whole case, the ends of justice require a new trial.

McCall, J., concurs; Leventeitt, J., concurs in result.

Judgment reversed and a hew trial granted, with costs to appellants to abide the event.

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Bluebook (online)

51 Misc. 649, 99 N.Y.S. 843, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-hoctor-nyappterm-1906.