SUPREME COURT.

#### Cornelius Burling, appellant, agt. Margaret King, respondent.

*General Term, First Department,*

*January,*1874.

A bill in equity for the specific performance of a contract is an application to the sound judgment of the court.

The court will require, as ground for granting relief in the premises, that the agreement sought to be enforced shall be certain in its terms, mutual in its character, fair and just, founded on an adequate consideration, and be in its nature and circumstances unobjectionable to a court of equity. In agreements between attorneys and clients, even though made under section 303 of the Code, the court will observe the rule of giving the most favorable construction thereof in the interest of clients.

*Held,*that there should be made by the courts, in defense of the honor and ' integrity of the legal profession, a discrimination between contracts properly stipulating a measure of compensation for professional services, and those in which attorneys secure to themselves an interest virtually as owners, in the subject-matter of litigation.

Davis *P. J.,*Daniels *and*Donohue, *JJ.*

Motion for reargument.

Mr. Shafer, *for appellant.*

Mr. Coursen, *for respondent.*

Davis, *P. J.,*

It is well settled that a bill in equity for the specific performance of a contract is an application to the sound discretion of the court, which withholds or grants relief according to the circumstances of each particular case. As was well said by Sutherland, J., in the court below, the agreement sought to be enforced “ must be certain in its terms, mutual in its character, fair and just, and founded on an adequate consideration, and be in its nature and circumstances unobjectionable to a court of equity.”

*453The agreement in this case was made between attorney and client, stipulating in behalf of the attorney for a large share of the property in litigation, or to become the subject of litigation as a compensation for services rendered or to be rendered, and for expenses in the employment of additional counsel “ and others ” in behalf of the plaintiff. It has been held that such agreements can be lawfully made under section 303 of the Code. *(Benedict*agt. *Stewart,*23 *Barb.,*420.) But the rule is still in full force that such agreements are regarded with suspicion by the courts, and in case the meaning of the instrument is not transparently obvious the most favorable construction is to be put upon it in favor of the client. *(Hutchings*agt. *Van Brunt,*38 *N. Y.,*335; *Brotherson*agt. *Consalus,*26*How., 213;*39 *Barb.,*513.)

Agreements between attorney and client of the kind sought to be specifically enforced in this case, when brought before a court of equity for its consideration, are subject to the well settled principles that enjoin it upon the court carefully to scrutinize the dealings and contracts between attorney and client, and to protect the latter against every attempt of the former to gain any undue advantage over his client. All presumptions are in favor of the client, and there must be clear proof, not only of the due execution of the instrument, but also of its integrity and entire fairness, outside the paper itself *(Brock*agt. *Barnes,*40 *Barb.,*421; *Nesbit*agt. *Lockman,*34 *N. Y.,*167, *and see opinion of*Bacon, *J., in Hitchins*agt. *Van Brunt,*38 *N. Y.,*342; *Story Eq.,*§§ 308 *to*324; *Ford*agt. *Harrington,*16 *N. Y.,*285; *Comstock*agt. *Comstock,*57 *Barb.,*453). It is, I think, to be regretted that the courts, in construing section 303 of the Code, did not discriminate between contracts properly stipulating a measure of compensation for professional services, and those in which attorneys secure to themselves an interest, virtually as owners, in the subject-matter of the litigation. The construction which permits such ownership tends to promote litigation in some of its worst forms, and to degrade the legal *454profession by involving its members, who allow themselves to make such contracts, in practices which the common law, and formerly the statutes of this state, denounced and punished as criminal, under the general designation of champerty and maintenance. It is quite easy to agree upon the compensation of an attorney without measuring it by a share, or any participation in the property recovered. Although such contracts are probably enforceable at law, I think it yet remains to be seen whether courts sitting in equity will classify them with the kind to which it applies its discretionary power to compel specific performance.

The learned justice who tried this case found as a fact that the agreement of plaintiff was, on his part, with intent *“*to prosecute and carry on said actions with the aid of counsel to be employed by him with a view of harassing the defendant in them into some settlement or result similar to that which actually took place.” The evidence quite justified this finding, for it shows that while the present plaintiff brought the heavy artillery of able counsel into the ease and another person as attorney of record, he devoted himself to the guerrilla tactics of hanging upon the flanks of the enemy to annoy him with affidavits and orders, injunctions, receivers, motions and stays, till he was glad to surrender at discretion. The counsel for Mr. King testifying on behalf of the present plaintiff says, *“*I was never more harassed in a litigation in my life than I was by Mr. Burling’s services in that case * * * I would come to my office in the morning and find a bundle of affidavits and notices of motion. I would do my best to reply to them, but before I did it I would find another bundle of affidavits. He was always making motions to dismiss everything I did. I took an appeal from an order, and then I had a bundle of affidavits to dismiss that. I don’t know how many affidavits, but, seemingly from Germans, from a great number of persons an infinite number of affidavits on every conceivable branch of the case.” And again, after describing the injunctions and receivership, he says, *“I*
      *455never was more harassed with the efforts of an attorney * * * I was exceedingly glad to settle.”

The plaintiff himself describes the character of some portion of his work, showing that it was not limited to the bar of the court. “There has been,” he says, on his direct examination, “ a great deal of money spent in that suit * * * I would rather not go into particulars about the matter; there were matters that money had to be paid for.” And, on cross-examination, when pressed to account for the alleged disbursement of the money paid him by Mrs. King, “ Ton are now getting beyond my recollection; I kept no account of that matter at all; I was continually going to lager bier saloons and to all sorts of places where money had to be spent.” And when closer pressed he says : “ I object to giving these details for the reason that a great part of this business is confidential, entirely, with all these parties.” When asked by his counsel to state, generally, how much time was consumed in procuring the affidavits and papers up to the time of the injunction and motion to vacate, the plaintiff answered : I cannot say, further than that my time was almost continually occupied in obtaining the affidavits and papers in that printed book ; it took almost the whole of my time during that period; there were a great many papers and affidavits drawn that were not used—affidavits taken from parties to prevent them from being afterward used against us; there was a great pile of them.”

It seems to me impossible to conceive a better illustration of the injurious effect of such agreements between attorney and client than the disclosures of the plaintiff himself present, nor stronger reasons why a court of equity should refuse to enforce a contract which finds its consideration in the services he described and proved.

It is true the learned judge who pronounced the opinion at general term fell into an error of fact as to the time when Mrs. King paid to plaintiff the $625, which he admitted he had received. He supposed it was after the making of *456the contract when in fact it was before; and upon this error he based a strong argument in favor of affirming the judgment, but the court below fell into no such error; and omitting all that was said on that subject by the learned judge in his opinion, reasons quite abundant for affirmance still remain.

The court below justly regarded the payment of the $1,500 counsel fee on the settlement as a fact strongly indicating the impropriety of a specific performance. It is true, the counsel employed, with sagacious prudence, had that sum made payable by the decree directly to himself; but he testified himself that he was not employed by Mrs. King but by the present plaintiff, and looked to him alone for his compensation. He was therefore Burling’s counsel and agent, and what he’ did must be regarded as Burling’s act; and it appears that it was approved by him. If the contract meant anything, it meant that the plaintiff should pay all the expenses of counsel; whatever was got from the other side for that purpose belong justly and equitable to Mrs. King, yet with that sum virtually in plaintiff’s pocket (for it relieved him *pro tanto*from his liability to his counsel), he asks a court of equity still to compel the conveyance to himself of one-third of the real estate which was conveyed to Mrs. King by her husband on the settlement. The refusal of justice Sutherland to do this seems to me to have been altogether right. He turned the plaintiff over to his remedy (if any) at law. The court at general term have dealt more favorably with him in allowing him to go to a jury with the question whether he has not already been adequately paid.

I think the plaintiff has no light to complain of this result; and the order appealed from ought to be affirmed.