Ransom v. Cutting (112 A.D. 150, 1906)

McLaughlin, J.:

In January, 1894, one Robert L. Cutting died leaving a will by which he gave all of his, property, with the exception of an annuity to his widow, to otie of his sons, James De Wolfe Cutting. The other son,, Robert L. Cutting, the appellant, feeling that he had been unjustly treated and that the instrument offered for probate' did not correctly express his father’s wish, retained the plaintiffs, a firm of lawyers, to oppose the probate of the will. -He was unable financially to pay the plaintiffs, and for the purpose of securing them for the services to be rendered in his behalf, he entered into an agreement with them on the 1st -of February, 1894, by the terms of. which he agreécj, “in consideration of legal services heretofore' and hereafter to bd renderéd,”.to assign, transfer and set over to them “ forty per cent (40$) of any and all recovery ’’ which he should-receive — which per cent, however, was to be reduced to thirty-three and one-third per cent, provided the contemplated litigation was ended by the decision of the surrogate, and to ten per- cent in the event of a -settlement realizing $50,000 or more. The agreement further provided that the plaintiffs should not “ call upon the said Robert L. Cutting * * *. for any sum or sums of money to pay the necessary disbursements required in the said.proceedings,”

The plaintiffs, under their retainer and the agreement referred to, rendered services as attorneys for the appellant in proceedings to compel an accounting of his grandfather’s estate, as well' as in the Surrogate’s Court to prevent the probate of his father’s will. Their efforts were successful, because they obtained a settlement and compromise by which he was paid $30,000 in cash, and to be thereafter paid an annuity of $4,000 — payment of which was secured by a deposit with the defendant trust company of $95,000. The appellant, appreciating the value of the services rendered for him' by the plaintiffs and the validity of the agreement which he had entered into with them, when he received the $30,000 in cashpaid them the ten per cent stipulated, and thereafter for a certain time paid' them ten per cent of the annuity received from the trust company. Subsequently, however, he refused to pay the plaintiffs the ten per cent stipulated on the annuity and repudiated the agreement, whereupon this action was brought against him and the trust company to enforce the same. The plaintiffs were' successful, the trial court holding that they had a lien to the extent of, ten per cent on the annuity as the same matured, which it directed should be paid by the trust' company, and Cutting alone has appealed. • ■

The judgment is attacked principally upon the ground that the agreement to pay the ten per cent is unconscionable, for which reason it ought not to be enforced by a court of equity, and that it is also champertoüs and, therefore, void and