Mygatt v. . Wilcox , 45 N.Y. 306 ( 1871 )


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  • [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 308 It was conceded by the appellants, upon the trial, that the services of the respondent were reasonably worth the amount charged by him therefor. The questions raised by the exceptions are, whether the demand was barred by the statute of limitations; second, whether the appellants were liable therefor personally or only in their representative capacity; and third, if personally liable, whether they were so jointly. The demand of the respondent was not, nor any part thereof, barred by the statute, although more than six years had elapsed after the respondent was employed by the appellants as their attorney and counsel to attend to the proceeding instituted against them in the Surrogate's Court, *Page 309 and to the appeal taken from the decree rendered by the surrogate to the Supreme Court, and after such decree had been reversed by the Supreme Court, and a rehearing ordered by the surrogate. The statute did not begin to run upon the demand for these services, and disbursements paid by the respondent, until the termination of the proceeding before the surrogate, by the settlement made by the parties. This results from the nature of the employment of the respondent by the appellants, which was to attend to the proceeding from the time of his retainer until its final determination, unless sooner terminated by the act of one of the parties. (3 Parsons on Contracts, 93; 11 Eng. Law Eq., 587; 4 Binney, 339; Whitehead v. Lord, 7 Exchequer, 691; Angel on Limitations, § 120; Hall v. Wood, 9 Gray, 60.) Adams v.The Fort Plain Bank (36 N.Y., 255), cited by the counsel for the appellants, so far from conflicting with this rule, really sanctions it. The ground upon which it was held in that case that certain portions of the plaintiff's demand were barred by the statute, was that the suits in which the services were rendered had been finally determined more than six years prior to the commencement of the action, and that the statute commenced running upon the services in each suit upon its termination, although the plaintiff had been employed in other suits by the defendant, which were pending and not terminated until within the six years. The appellants were personally liable to the respondent for his services, although the proceeding in which he was employed by them was instituted against them as administrators. The services were rendered at their request, and there was no pretence that the respondent agreed to look to the estate represented by them for payment therefor, or that they undertook to make the estate liable to him, if, indeed, they had power to make it liable to him therefor. A party who employs an attorney is personally liable to him for his services, although acting as a trustee or in a representative capacity in the business in which he employs him. (Bowman v. Tallman, 2 Robertson, 385, and authorities cited.) The appellants were liable jointly. *Page 310 They were joint parties to the proceedings in which the services were rendered, and jointly retained the plaintiff. The fact that their interests upon a distribution of the estate were different was wholly immaterial. The plaintiff was entitled to recover interest upon his account, after it was rendered to the appellants. Then it should have been paid. (Adams v. The FortPlain Bank, supra.) It appears that the referee made a mistake of $200 in footing the account of the respondent for services, in his favor. This mistake was for the first time pointed out by the counsel for the appellants in this court. It may well be doubted whether the exception taken to the report of the referee was sufficiently specific to make the error available in this court; but without considering this point, as the respondent has by stipulation consented to its correction, the judgment must be modified by reducing the amount $200, and the interest allowed thereon by the referee, and, as so modified, affirmed, with costs.