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bitrary, discharge his attorney." 205 N. Y.) These decisions in other jurisdictions are 402, 98 N, E. 916, Ann, Cas. 1913E, 536. not consistent with the principles which de

[1, 2] That the client may at any time for fine the nature of the contract under which any reason or without any reason discharge an attorney is employed, as those principles his attorney is a firmly established rule have been declared by the decisions or this which springs from the personal and con- court. Our own decisions clearly established fidential nature of the relation which such the right of the client to terminate the cona contract of employment calls into exist-tract with or without cause, and It follows

Matter of Dunn, 205 N. Y. 398, 98 from this rule, by necessary implication, N. E. 914, Ann. Cas. 1913E, 536. If the client that if the client has the right to terminate has the right to terminate the relationship the contract, he cannot be made liable in of attorney and client at any time without damages for doing that which under the cause, it follows as a corollary that the client contract he has a right to do. cannot be compelled to pay damages for ex

In Tenney V. Berger, 93 N. Y. 524, 529 ercising a right which is an implied condition (45 Am. Rep. 263), this precise subject was of the contract. If in such a case the client under discussion, and Judge Earl said: can be compelled to pay damages to his at "While the attorney is thus bound to entire torney for the breach of the contract, the performance, and the contract as to him is contract under which a client employs an at- feature of the law that it should not be treated

treated as an entire contract, it is a singular torney would not differ from the ordinary as an entire contract upon the other side, for contract of employment. In such a case the it is held that a client may discharge his atattorney may recover the reasonable value torney, arbitrarily, without any cause, at any

time, and be liable to pay him only for the servof the services which he has rendered, but ices which he has rendered up to the time of he cannot recover for damages for the breach his discharge." of contract. The discharge of the attorney by his client does not constitute a breach of 812, 99 N. Y. Supp. 1059, 1061, Mr. Justice

In Johnson v. Ravitch, 113 App. Div. 810, the contract, because it is a term of such

Gaynor said: contract, implied from the peculiar relationship which the contract calls into existence, his client subject to the rule that his client may

"Every attorney enters into the service of that the client may terminate the contract at dismiss or supersede him at will; and if he any time with or without cause.

makes a contract for future services to his cliWe are aware that in certain Jurisdictions made with full knowledge that he may never

ent, it is necessarily subject to such rule, and a contrary rule has been adopted, and that it perform such service, for the reason that his has been held that where the attorney is em- Client may not keep him, and that in that event ployed to perform services for an agreed he will not be paid therefor, but will be entisum and is discharged without cause and has actually rendered.”

tled to compensation only for the services he thereby prevented from the performance of the contract, the attorney may recover the

The extracts just quoted from these two full contract price. Scheinesohn v. Lemonek, last-mentioned decisions correctly declare 84 Obio St. 425, 95 N. E. 913, Ann. Cas. the rule of law which is applicable in this 1912C, 737; Bartlett v. Odd Fellows Sav. state. The rule secures to the attorney the Bank, 79 Cal. 218, 21 Pac. 743, 12 Am. St. right to recover the reasonable value of the Rep. 139; French v. Cunningham, 149 Ind. services which he has rendered, and is well 632, 49 N. E. 797; Moyer v. Cantieny, 41 calculated to promote public confidence in the Minn. 242, 42 N. W. 1060; Kersey v. Garton, members of an honorable profession whose 77 Mo. 645; Myers v. Crockett, 14 Tex. 257; relation to their clients is personal and conMt. Vernon v. Patton, 94 Ill. 65.

fidential. What has been said declaratory In Scheinesohn v. Lemonek, supra, it was

of the rule that the attorney is limited to held that because the attorney had perform a recovery upon a quantum meruit does not ed no services under his contract, and the relate to a case where the attorney in enclient had not been in any way benefited, tering into such a contract has changed his the rule of quantum meruit was inapplicable. position or incurred expense, or to a case

In French v. Cunningham, supra, the court where an attorney is employed under a genheld that the ordinary rule that the at- eral retainer for a fixed period to perform torney could recover the reasonable value of legal services in relation to matters that may his services does not apply "f the party do arise during the period of the contract. The ing the work has been prevented from com

plaintiff's right of action is limited to a repleting it by the other party, in violation of covery for the reasonable value of services

rendered. the contract." In Myers v. Crockett, supra, the court said plaintiff's assignors were discharged under

It is claimed by the appellant that as the that:

the contract March 30, 1900, and the present "Where the attorney had entered upon and was proceeding to perform the services contract action was not commenced until October 15, ed for, and the conduct of the case was thus 1908, this action is barred by the statute of wrested from him by his client, without any limitations. fault on his part, there would seem to be much reason in holding that he was entitled to recover

[3, 4] The contract of an attorney with his the full amount of the fee contracted to be paid client being an entire and continuous confor the services contemplated by the contract.” | tract, the statute of limitations does not be

gin to run against a claim for services under contingent compensation of 50 per cent. of damsuch contract until the final service has been ages awarded over the amount fixed by city experformed. Eliot v. Lawton, 7 Allen (Mass.) pert, was discharged by his client before comple274, 83 Am. Dec. 683; Powers v. Manning, 154 ited to the value of the services he had then

tion of the contract, his compensation was limMass. 370, 376, 28 N. E. 290, 13 L. R. A. 258. rendered. If, however, the services are brought to an (Ed. Note.--For other cases, see Attorney and end, the cause of action on behalf of the at- Client, Cent. Dig. $ 302; Dec. Dig. Om134(2).] torney is complete and the statute commences Appcal from Supreme Court, Appellate to run against the claim. As was said in Division, First Department. Adams v. Ft. Plain Bank, 36 N. Y. 255, 260: Application by the City of New York rela

"The test, therefore, being whether the stat-tive to acquiring title to certain land. From ute begins to run or not, is, could an action be an order of the Appellate Division (159 N. commenced at once for the demand?"

In Bathgate v. Haskin, 59 N. Y. 533, 535, 4. Supp. 1105), reversing an order of the Judge Andrews said:

Special Term, which canceled an attorney's

lien against an award in condemnation pro"No right of action accrues for each successive service in the progress of the cause, and the ceedings, there is an appeal concerning Morstatute does not begin to run against his claim ris Kushner. for compensation until his relation as attorney in the suit has terminated. The client may ter

Frederick W. Hottenroth, of New York minate it at his pleasure."

City, for appellant. George M. Mackellar, of On bebalf of the respondent it is urged New York City, for respondent. that the plaintiff's claim is not barred by the statute because the contract under which the

PER CURIAM. In March, 1907, the petiplaintiff's assignors were employed makes tioner, Morris Kushner, retained the respondthe compensation of the attorneys contingent ent as his attorney in a proceeding for the upon the result of an award being made to opening of Rosedale avenue in the city of the client. The award to the client was not New York. The contract of retainer, which made until October 20, 1902, and it is argu. was signed by the client, is in writing, and ed that the cause of action did not accrue contains the following provision: until this time and, therefore, the claim of "I agree to pay, and hereby assign to him (the the plaintiff is not barred by the statute. If attorney) for all services, fifty per cent. of the the plaintiff's assignors had not been dis- damages over and above amount fixed by city

amount paid as purchase price, or recovered for charged their cause of action would not have expert. No other compensation whatever, either accrued until the contingency happened upon for expert witness fees or for any other diswhich their right to compensation was, by bursement, is to be paid by me. In case of no the contract, made to depend. Ga Nun v.

award nothing to be paid by me." Palmer, 202 N. Y. 483, 96 N. E. 99, 36 L. R.

Thereafter and while the proceeding was A. (N. S.) 922. The cause of action of the still pending, the client gave notice of the plaintiff's assignors, however, accrued when cancellation of the contract, and terminated they were discharged by their client and the the attorney's authority to appear for him. contract of employment terminated. That

An award of $6,139.70 was procured by other date was March 30, 1900, and the claim that counsel. Interest upon this award has then arose was barred by the statute of lim- brought the recovery to $8,803.99. This is Itations when this action was commenced $3,197.77 in excess of the value fixed by the on October 15, 1908.

city's expert, and the respondent lays claim It follows that the judgment must be re- to 50 per cent of the excess, or $1,598.89. versed, with costs in all courts, and the com- He has filed with the comptroller a notice of plaint dismissed.

lien on the award, and pending the determi

nation of the controversy the comptroller WILLARD BARTLETT, C. J., and HIS- has withheld payment. In a proceeding COCK, COLLIN, CUDDEBACK, HOGAN, brought by the client to cancel the lien and and POUND, JJ., concur.

compel payment by the comptroller, the Ap

pellate Division, reversing the Special Term, Judgment reversed, etc.

has sustained the attorney's claim, and has (Opinion prepared by SEABURY, J., before held that he is entitled, standing upon his his resignation and adopted by the court.)

contract, to payment from the fund.

We do not find it necessary, for the disposi

tion of this appeal, to determine whether the (219 N. Y. 192)

contract contains an implied promise by the In re ROSEDALE AND ST. LAWRENCE attorney to pay the expense of litigation, and AVENUES IN CITY OF NEW YORK.

thereby violates section 74 of the Code of Appeal of KUSHNER.

Civil Procedure. McCoy V. Gas Engine & (Court of Appeals of New York. Oct. 17, 1916.) Power Co., 152 App. Div. 642, 137 N. Y. Supp. ATTORNEY AND CLIENT Om 134(2)-COMPENSA

591; Id., 208 N. Y. 631, 102 N. E. 1106; RanTION-CONTRACT FOR SERVICES.

som v. Cutting, 188 N. Y. 447, 81 N. E. 324. Where an attorney, einployed in a proceed. That section of the Code has been a mended ing for the opening of an avenue upon an agreed since the contract was made, and is now

For other cases see same topic und KEY-NUMBER in all Key-Numbered Digests and Indexes
114 N.E.-4


section 274 of the Penal Law (Consol. Laws, , upon became a bailee of the bonds in behalf of
c. 40). If we assume that the contract is not her executor.
illegal, the attorney is not entitled to com-Cent. Dig. ss 25-31; Dec. Dig. Om7.]

[Ed. Note.-For other cases, see Bailment,
pensation according to its terms. Under our
recent decision in Martin v. Camp, 219 N. Y. 4. EMBEZZLEMENT 48(1)-OWNERSHIP OF
170, 114 N. E. 46, the client has the right to


In a prosecution for larceny or embezzle end the employment at any time before com ment of bonds, by the business agent of a deplete performance, and the value of the serv- cedent, which he claimed she had given him, the ices then rendered becomes the measure of trial judge erred in telling the jury that, in

considering the case, they need not trouble themthe attorney's reward. The petitioner has selves about the ownership of the bonds by deexercised that right, and the attorney's com- cedent's executor, and when he refused to inpensation even under a lawful contract must struct, as requested, that in order to convict they be limited accordingly.

must find that defendant was the agent or bailee

But the attorney of the executor, since the ownership of property now before us has made no attempt to prove alleged to have been stolen is always material the value of his services up to the date of in a prosecution for larceny, and the question, the termination of his employment. He has wherever it involves any matter of fact, can

not properly be withdrawn from the considerataken his stand upon the position that even tion of the jury, however clear the proof. though the employment was terminated, he [Ed. Note.-For other cases, see Embezzlemust be paid according to the contract. Our ment, Cent. Dig. $$ 72, 75; Dec. Dig. ww48(1).] decision in Martin v. Camp shows that posi- 5. CRIMINAL LAW Ow823(4)-APPEAL-HABMtion to be untenable. In the absence of any

LESS ERROR. claim by the attorney to recover on a quan- ment of bonds by decedent's business agent who

In a prosecution for larceny or embezzletum meruit, the court at Special Term was claimed to have been given the bonds by dejustified in directing that the fund be paid cedent, where the trial court referred to defendto the petitioner.

ant's claim that the bonds had been given him The order of the Appellate Division should cumbent upon defendant to prove a gift, but

as the crucial point, stating that it was not inbe reversed, and that of the Special Term that the people were bound to establish beyond a affirmed, with costs in the Appellate Division reasonable doubt that there had not been one, and in this court.

error in telling the jury that they need not
trouble themselves about the ownership of the

bonds by decedent's executor, and in refusing to
WILLARD BARTLETT, C. J., and HIS- instruct that to convict they must find that de-
COCK, CHASE, COLLIN, CUDDEBACK, fendant was the agent or bailee of the executor,
HOGAN, and CARDOZO, JJ., concur.

was harmless.

[Ed. Note. For other cases, see Criminal

Law, Cent. Dig. 88 1992–1994, 3158; Dec. Dig. Ordered accordingly.


Appeal from Supreme Court, Appellate Di

vision, Fourth Department. (219 N. Y. 222)

Benjamin Hill Smith was convicted of

grand larceny in the first degree, and from a (Court of Appeals of New York. Nov. 3, 1916.) judgment of the Appellate Division (172 App. 1. EMBEZZLEMENT 30-OWNERSHIP BY Ex

Div. 826, 159 N. Y. Supp. 1073), affirming the

conviction, he appeals. Judgment affirmed. In a prosecution for larceny and embezzlement of bonds of a trust company, entitled as

P. Chamberlain, of Rochester, for appelexecutor, the ownership of the property was lant. John W. Barrett, Dist. Atty., of Websufficiently alleged in the indictment, although ster (James Mann, Asst. Dist. Atty., of Rochthe trust company was not described therein as ester, of counsel), for the People. testatrix's executor, since an executor or administrator has per se such a special property as will permit the goods to be described as his WILLARD BARTLETT, C. J. The indictindividually.

ment charges the defendant with grand lar[Ed. Note.-For other cases, see Embezzle-ceny in the first degree, in three counts: (1) ment, Cent. Dig. 88 44, 45; Dec. Dig. Om 30.] That on October 15, 1913, he embezzled five 2. EMBEZZLEMENT O 35 PROVING OWNER- bonds of the Consolidated Coal Company of SHIP AS LAID.

Maryland, worth $5,000, which he had in his In a prosecution for grand larceny in the possession as bailee of the Fidelity Trust first degree for having stolen or embezzled five bonds, the property of a trust company, it was

Company of Rochester; (2) that he feloniessential for the prosecution to prove the owner-ously secreted, withheld, and appropriated to ship as laid.

his own use the said bonds, being the person[Ed. Note.- For other cases, see Embezzle- al property of the said company; and (3) ment, Cent. Dig. $8 55–59; Dec. Dig. 35.] that he stole the said bonds, its said prop 3. BAILMENT 7-RECEIPT OF BONDS OF AN. erty. OTHER-DEATH OF OWNER.

The theory of the prosecution was that the Where a business agent receipted for bonds defendant acquired the bonds as agent and in in his employer's behalf when she acquired them, and they remained in his custody as her behalf of a wealthy widow residing in Rochagent without any change in the character of ester, Mrs. Harriet F. Newcomb, and that his title up to the time of her death, he there after her death he appropriated them to his


own use, having then become by operation of ecutor. An intermediate gift, however, law a bailee thereof in behalf of the Fidelity would have made them the absolute property Trust Company of Rochester, the executor of the defendant individually, and of course under Mrs. Newcomb's will, which corpora- he could not have stolen them from himself. tion is named in the indictment as the owner [4, 5] The learned trial Judge, therefore, of the bonds alleged to have been embezzled, erred when he told the jury that in considermisappropriated, and stolen.

ing the case they need not trouble themThe defense was that Mr. Smith had be- selves about the ownership of the bonds by come the owner of these bonds in Mrs New- the Fidelity Trust Company, and when he comb's lifetime by virtue of a direct gift refused to instruct them, as requested by thereof from her to him; and, therefore, the defendant's counsel, that in order to conthat he continued to own them after her vict they must find from the evidence that death, and the title thereto never passed to the defendant was the agent or bailee of the her erecutor. There was some evidence ad-corporation, executor. The ownership of the duced in behalf of the defendant tending to property alleged to have been stolen is alshow that these and other securities, de- ways material in a prosecution for larceny, scribed on the trial as Spencer Trask securi- and the question, wherever it involves any ties, had been given by Mrs. Newcomb to Mr. matter of fact, cannot properly be withdrawn Smith in recognition of his services as her from the consideration of the jury, no mattrusted confidential agent, extending over a ter how clear the proof may be. The instrucperiod of many years. He had charge of hertion and the refusal were erroneous because business and financial affairs, had been a the ownership of the bonds by the Fidelity member of her household since 1905, and, ac- Trust Company depended upon the question cording to the testimony of a lady who lived whether they bad or had not been given to in the family, they were “just like mother Mr. Smith by Mrs. Newcomb in her lifetime, and son together.” There was, therefore, and that was a controverted question of fact, some basis for regarding him as one who the determination of which belonged to the might naturally be a recipient of Mrs. New jury. It follows that such an error would comb's bounty. No direct proof of any gift, ordinarily be fatal to a conviction. In however, was laid before the jury. The only the present case, however, I think we may evidence from which a gift could be inferred be confident that it was not harmful to was proof of declarations by Mrs. Newcomb the defendant. Unless there had been a to the effect that she wanted to give—and in gift of the bonds to the defendant, the one instance a statement by her that she had proof that they belonged to Mrs. Newcomb's given-certain valuable securities to Mr. executor was uncontroverted. The learned Smith.

trial judge referred to defendant's claim [1, 2] The ownership of the property was that the bonds had been given to him as the sufficiently alleged in the indictment, al- crucial point in the case, saying in subthough the Fidelity Trust Company was not stance, also, that it was not incumbent upon described therein as the executor of Harriet the defendant to prove a gift, but that the F. Newcomb. "An executor or administrator people were bound to establish beyond a reahas per se such a special property as will sonable doubt that there had not been one. permit the goods to be described as his in. The jury were made clearly to understand dividually." 2 Wharton's Crim. Law (11th that if the defendant had become the owner Ed.) § 1189. It was essential, however, for of the bonds by gift, he could not be convictthe prosecution to prove the ownership as ed; and he did not question the executor's laid. 2 Bishop's New Crim. Proc. $ 752, subd. claim of ownership on any other ground. In 1; Maban's Case, 3 N. Y. City Hall Rec. 44; the light, therefore, of the instruction to the King v. State, 44 Ind. 285; Bell v. State, 46 effect that a gift to the defendant would abInd. 453. So imperative is this rule that it solve him from liability, the error which has has been held in another jurisdiction that is been considered was equivalent to a ruling the owner be described in the indictment as that if the defendant had not previously beto the jurors unknown, and it appears in the come the owner of the bonds by gift from evidence that his name is known, the de- Mrs. Newcomb, the Fidelity Trust Company fendant should be acquitted of that indict. of Rochester became the owner thereof as ment and tried on a new one for stealing the her executor by operation of law; and this goods of the owner by name. State v. Fur- could not possibly have harmed the defendlong, 19 Me. 225.

ant. [3] The requirement was fulfilled by the As to the other exceptions, we are satisfied proof in the present case, unless Mrs. New with the disposition made of them in the comb had made a gift of the bonds to the opinion of the presiding justice of the Apdefendant. He receipted for them in her pellate Division. behalf when she acquired them, and if they

The judgment should be affirmed. remained in his custody as her agent, with

HISCOCK, COLLIN, CUDDEBACK, and out any change in the character of his title, POUND, JJ., concur. HOGAN, J., not voting. up to the time of her death, he thereupon became a bailee thereof in behalf of her ex

Judgment affirmed.

(219 N. Y. 188)

and was compelled to pay $23,561.33 on ac In re DUNFEE.

count of Dunfee's default. The company Appeal of HASBROUCK.

then sued Dunfee for false representations (Court of Appeals of New York. Oct. 17, 1916.) bond, and recovered judgment against him

as to his financial standing in obtaining the 1. BANKRUPTCY OW426(1)-RELEASE OF PBOV- for $27,669.53, the penalty of the bond with

ABLE DEBTS-OBTAINING “PROPERTY" BY interest and costs. Dunfee now asserts that FALSE REPRESENTATIONS.

Under the federal Bankruptcy Act (Act this judgment against him was canceled by July 1, 1898, c. 541, § 17, 30 Stat. 550 [U. S. his discharge in bankruptcy. He alleges that Comp. St. 1913, § 9601]), providing that a dis obtaining the bond was not obtaining “propcharge shall release from all provable debts except liabilities for obtaining property by false erty” within the meaning of the statute. pretenses or false representations, judgment That presents the question in the case. against a bankrupt in favor of a surety com Section 17 of the Bankrupt Law provides: pany for false representations as to his financial

A discharge in bankruptcy shall release a standing in obtaining a bond was not canceled bankrupt from all bis provable debts, except by his discharge in bankruptcy; obtaining the such as

(2) are liabilities for obtainbond was obtaining property” within the bank. ing property by false pretenses or false repruptcy act, which does not require that the

resentations. property shall be obtained at the instant of making the false representations, nor that it shall

The decision in the case so far has gone pass directly to the bankrupt.

in favor of the judgment debtor, Dunfee, but [Ed. Note. For other cases, see Bankruptcy, I think that determination is erroneous, and Cent. Dig. $$ 787, 792; Dec. Dig. Om426(1). that the judgment was not discharged. Ob

For other definitions, see Words and Phrases, taining the bond by false representations and First and Second, Series, Property.] 2. FALSE PRETENSES 4–OBTAINING PBOP- should be regarded as all one transaction,

paying the obligee the amount of the loss ERTY DIRECTLY AND IMMEDIATELY.

To commit the crime of obtaining property which amounted to obtaining money by false by false, pretenses, the fraudulent party need representations within the Bankrupt Law. not obtain the property at the instant of mak- The Bankrupt Law does not require that the ing the false representations, por need it pass property shall be obtained by the bankrupt directly to him.

[Ed. Note. For other cases, see False Pre- at the instant of making the false representenses, Cent. Dig. $ 1; Dec. Dig. Om 4.) tations, nor that it shall pass directly to the 3. FRAUD 46 — FALSE REPRESENTATION bankrupt. In criminal cases the rule reCOMPLAINT.

lating to the crime of obtaining property by In an action by a surety company against a false representations is the same. Commonparty who procured it to become surety on his bond by false representations, the complaint, al- wealth v. Harkins, 128 Mass. 85; 9 Halsleging that defendant, with the intent and for bury's Laws of England, 698. The parties purpose of inducing plaintiff to execute the in the case under consideration intended at said bond, made the false representations com- the time the false representations were made plained of, and that plaintiff, relying thereon, did execute and deliver the said bond, was suffi-| that the bonding company should assume a cient to permit recovery by the surety of the contract of suretyship in Dunfee's beball, amount it was compelled to pay on account of and they must have bad in contemplation all defendant's default.

the results that naturally follow from such [Ed. Note.-For other cases, see Fraud, Cent.

a contract. So when the surety company Dig. $ 41; Dec. Dig. Ow46.)

paid the loss to the obligee in fulfillment of Appeal from Supreme Court, Appellate Di- its obligation, the law implied that the pay. vision, Fourth Department.

ment was at the request of Dunfee, and this In the matter of the examination of Jo- implication arose from the contract of sureseph Dunfee, judgment debtor, in proceedings tyship itself. As was said in Garr v. Martin, supplementary to execution. From an order 20 N. Y. 306, 309 : of the Appellate Division (94 Misc. Rep. 628,

“Where one person advances money for anoth159 N. Y. Supp. 703), affirming an order va er, in payment of the debt of the latter, it is cating a previous order in supplementary deemed at the instant of its payment, to be the proceedings of the Onondaga county court, money of the party for whose benefit the pay

ment is made; so that in the eye of the law Frank Hasbrouck, as Superintendent of In- the debt is satisfied, not by the money of a surance and receiver of the Empire State third party, but by that of the debtor himself.” Surety Company, appeals. Order reversed,

[3] It is suggested that the allegations of and question certified by the Appellate Divi- the complaint are not broad enough to persion answered in the negative.

mit a recovery by the plaintiff on the ground Benjamin Reass, of Brooklyn, for appel- stated herein. The complaint says: lant. William F. Canough, of Syracuse, for “The defendant (Dunfee) with the intent and respondent.

for the purpose of inducing the plaintiff to execute, seal, and deliver the said bond" made the

false representations complained of, and that CUDDEBACK, J. [1, 2] This proceeding the plaintiff, relying thereon, “did execute, seal, involves the meaning of the word “property" and deliver the said bond." in section 17 of the Bankrupt Law. The Em As has been said, the request for the bond pire State Surety Company became surety included a request to the surety to assume on the bond of Joseph Dunfee for $27,000 the obligation contained in the bond. The

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