« PreviousContinue »
which I have against the Y. Z. Co., for personal injuries suffered by me on the day of , 19, through the negligence of said company, I, M. N., of
hereby agree that said A. B. may have and retain [twenty-five]23 per cent of the amount of any verdict recovered against or compromise effected with said company (such twenty-five per cent to be in full compensation for the services of my said attorney throughout the entire conduct of said case, and no other or further charge for any such services to be made against me]. 24
My said attorney shall have any taxable costs, in addition to the aforesaid twenty-five per cent.25
No settlement, or compromise, shall be made without my consent and the consent of my said attorney.28
IN WITNESS WHEREOF, &c.
FORM No. 266. Agreemeni for share of a definite fund when, or if, recovered. In consideration of the agreement this day made by A. B., counsellor at law, that he will act as our attorney and counsel in such proceedings as may be necessary to obtain for us our shares in the estate of M. N., late of , deceased, we, the undersigned, next of kin and heirs at law of said M. N., hereby agree to pay said A. B. for his services one-fourth of any sum or sums of money that may be received by us, or any of us, in settlement of our claims as heirs-at-law and next of kin of said deceased, or in pursuance of any judgment, decree, or order in any action or proceeding undertaken in respect to the same, or onefourth of any property or interest that we may become seized or possessed of as such heirs-at-law or next of kin.27
23 An agreement to pay an attorney fifty per cent. of the recovery can not be condemned as unconscionable and illegal on its face; it can only be interfered with when shown to have been induced by fraud, or to be so excessive as to evince the attorney's purpose to obtain an improper or undue advantage. Matter of Fitzsimons, 174 N. Y. 15; Serwer v. Serwer, 91 App. Div. 538, 86 N. Y. Supp. 838.
24 See paragraph 1, p. 498, as to the propriety and enforceable character op agreement for contingent fee. A fur. ther stipulation that “the attorney agrees to pay all necessary disburse. ments" may most materially affect the validity of the agreement. ld.
25 Ser paragraph 3, p. 500, as to attorney's right to taxable costs. Since the presumption is that such costs be.
long to the client, a definite stipulation to that effect, as in the Form, is necessary.
26 This is unnecessary in New York, under section 66 of the Code, and ineffective to prevent an honest settlement (see paragraph 2, p. 499), and of doubtful utility between the parties in any jurisdiction. Its constant presence in such agreements may be due to its supposed moral efect upon the client,
In Weller v. Jersey City, H. & P. R. R. Co. (N. J., July, 1905), 65 Atl. Rep. 459, the court held that such a stipulation in an action for personal injuries did not deprive the defendant of his right to compromise with the plaintiff, if done in good faith and without any attempt to defraud the attorney.
Witness our hands, &c.
27 From Bennett v. Donovan, 83 App. Div. 95, 82 N. Y. Supp. 506, where it was held that the agreement operated as an equitable assignment of one-fourth of whatever money or property was recovered, and was not
a mere contract of employment. Also, held, that the attorney's successor in interest could maintain an action for an accounting and to compel the pay. ment to him of the agreed share.
ASSIGNMENT OF CAUSE OF ACTION.
1. What causes of action assignable.
(268) Assignment of cause of action. (269) Another form: - Assignment
share or interest, to secure aid in prosecuting claim.
1. What causes of action assignable.]— Under code procedure nearly all causes of action are assignable, except such as are purely personal, and do not survive the death of either party, and such as are specially precluded from assignment by statute, or judicially excepted on grounds of public policy.28
A part of an entire debt or obligation may be assigned, 29 and the assignee of the part may bring. his separate action.298 A special guaranty is not assignable until a right of action has arisen upon it.30.
The general test in respect to torts is, that a cause of action for injury to a right of property, though it be caused by negligence, deceit, or other tort, is assignable ; 31 but a cause of action for injury to the person, whether of the plaintiff or to one so identified with him that his right of recovery in respect to it is purely personal — such as a parent's right of action for loss of his child's services, and a husband's action for loss of his wife's services or consortium — is not assignable.32 If the tort cause injuries both to property and the person, the right of action in respect to the
28 N. Y. Code Civ. Pro., 1910.
30 Brum v. Gilbert, 50 App. Div. 430, 64 N. Y. Supp. 144; Levy v. Coken, 45 Misc. 95, 91 N. Y. Supp. 594.
31 Wolff v. Rausch, 22 Misc. 108, 48 N. Y. Supp. 716; Drake v. Smith, 12 Hun, 532 (conversion) ; Woodbury v. Delap, 1 Sup. Ct. (T. & C.) 20, 65 Barb. 501; Wickham 1. Roberts, 112 App. Div. 742, 98 N. Y. Supp. 1092; Johnston v. Bennett, 5 Abb. (N. S.) 331; Keeler 1. Dunham, 114 App. Div. 94 (deceit). Whether an action abates is not the test of its assignability. Keeler v. Dunham, supra.
32 Ludwig v. Glaessel, 34 Hun, 312 (guardian's assignments of rights of children under Civil Damage Act for injury to means of support).
Wade v. Kalbfleisch, 58 N. Y. 282 (for breach of promise of marriage). And see Snyder v. Wabash, etc., Ry. Co. (Mo., 1885), 2 West. Rep. 107.
former is assignable, and in respect to the latter not.33 A verdict or judgment based on a personal tort is assignable.34
The principal statutory and judicial exceptions, on the grounds of public policy, are, certain claims against the government, 35 including official salary or allowances not yet earned,36 contracts with government,37 penalties, 38 claims to lands held under an adverse possession39 (in which case the grantee must sue in the grantor's name40), a possibility of reverter,41 claims to pure expectancies, which, according to some authorities, are not assignable,42 claims to the income of a trust created by a third person, and reasonably necessary for the support of the beneficiary.43 Claims
33 A cause of action against a plumber for damages resulting from improper repairing, held to abate by his death as to damages to plaintiff's person, but to survive as to damages and expenses occasioned by children's sickness. Scott v. Brown, 24 Hun, 620.
34 Zogbaum v. Parker, 66 Barb. 341, aff’d, 55 N. Y. 120; Dougherty v. Gardner, 8 Abb. N. C. 224.
35 10 U. S. Stat. L., 170; Erwin v. United States, 97 U. S. 392; Goodman 0. Niblack, 102 U. S. 556; Bailey v. United States, 109 U. S. 432; Bachman r. Lawson, 109 U. S. 659, 17 Repr. 257.
Compare, as to sustaining validity of assignment of government contract, Oregon Steamship Co. v. Otis, 100 N. Y. 446, aff'g 27 Hun, 452; s. c., more fully, 14 Abb. N. C. 388.
38 Bowery Nat. Bank v. Wilson, 122 N. Y. 478 (future fees of sheriff); Billings v. O'Brien, 14 Abb. Pr. (N. S.) 238; Inhabitants of Wayne '. Cahill (N. J., 1886), 6 Atl. Rep. 621; Bliss v. Lawrence, 58 N. Y. 442; 17 Am. Rep. 273 (unearned salary of public officer); Matter of Worthington, 141 N. Y. 9 (executor's commissions).
37 Although it may be disregarded by the government, it is good between the parties. Matter of Hovy, 153 N. Y. 522.
38 McBratney v. R., W. & O. R. R. Co., 17 Hun, 385, holding that a cause of action against a railroad to recover the penalty for exacting payment of excessive fare, is not assignable.
See Brackett v. Griswold, 103 N. Y. 425, holding a cause of action against director for false certificate of paid-up capital abates by director's death,
39 A grant of lands, held adversely at the time, is void. N. Y. Real Property Law, 8 225; Chamberlain v. Taylor, 12 Abb. N. C. 473.
Actual, not constructive, possession is required to avoid the deed. Dawley r. Brown, 79 N. Y. 390.
40 N. Y, Code Civ, Pro., § 1501; Hasbrouck 1. Bunce, 62 N. Y. 475. 41 Nicoll v, N. Y. C. & H. R. R. R. Co., 12 N. Y. 121.
42 Stover v. Eycleshimer, 4 Abb. Ct. App. Dec. 309. (A sound authority in support of such assignments of mere expectancies.) Contra, Smith v. Baylis, 3 Dem. 567.
One may assign his interest in money to become due him on the establishment of a claim against a foreign government before a mixed commission, the instrument of assignment containing express words of transfer. In the contemplation of equity it is immaterial that the fund is not in esse. Peugh v. Porter, 112 U. S. 737. So also of a claim against a municipal corporation. Jones v. Mavor, etc., of N. Y., 90 N. Y. 387.
43 Tolles t. Wood, 16 Abb. N. C. 1, and note on reaching trust income.
Other claims under a trust, though merely expectancies, are alienable. Ham v. Van Orden, 84 N. Y. 257, except that one beneficially interested in a
to the specific performance of contracts which by their terms are purely personal, are also unassignable, but in this class of cases, if the contract has been performed on either part, a right of action for damages for non-performance by the other is assignable, notwithstanding clauses in the contract making performance a personal matter.
2. When desired for purpose of action.]— The cases in which attorneys are called on to advise in regard to the expediency of an assignment of a cause of action before commencing suit, are chiefly those in which it is supposed that it may have effect on a question of jurisdiction, or authority to sue, of security for costs, 45 or of evidence.
Under statutes enabling an assignee of a chose in action to sue, if there be no express restriction, it is no objection to an assignment otherwise good that it was made for the purpose of enabling the assignee to sue in a jurisdiction in which the assignor could not have sued. 46
Upon this principle a foreign executor or administrator, who cannot himself maintain an action without taking out letters within the State, may assign the cause of action, and the assignee can sue thereon.47 So, although the Act of 187548 has interposed to prevent an assignment of a cause of action being made for the purpose of making a controversy between citizens of different States, which before was between citizens of the same State, and
trust for the receipts of the rents and profits of lands cannot assign such interest. N. Y. Real Property Law, $ 83.
As to life insurance for wife, etc., Eadie 1. Slimmon, 26 N. Y. 9.
44 N. Y. Bank Note Co. r. Hamilton Bank Note Co., 180 N. Y. 280, 291; Hayes v. Willio, 4 Daly, 259 (theatrical employment); Merritt . Booklovers' Library, 89 App. Div. 454, 85 N. Y. Supp. 797; Devlin v. Mayor, etc., of N. Y., 63 N. Y. 8.
45 See Chapter VII, post.
46 McDonald r. Smalley, 1 Pet. 620; Jones 1. League, 18 How. (U. S.) 76; Smith v. Kernochen, 7 id. 198; Barney t. Baltimore, 6 Wall. 280.
Otherwise if the assignment was not an actual one, but merely colorable. Smith r'. Kernochen, 7 How. (C. S.) 198; Jones 1. League, 18 id, 76.
47 Harper v. Butler, 2 Pet. 239; Petersen r. Chemical Bank, 32 N. Y. 21; Guy v. Craighead, 6 App. Div. 463, 39 N. Y. Supp. 688. But the assignee of an executor, who in his individual capacity held the claim against the estate of the testator, which he could himself only have presented in his accounts, held, not entitled to sue thereon in Snyder v. Snyder, 30 Hun, 186.
48 Mar. 3, 1875, § 5, 18 U. S. Stat. L., 478, as amended by the Act of Mar. 3, 1887, Chap. V, Article III, post.