bitrary, discharge his attorney." 205 N. I.J 402, 98 N. E. 916, Ann. Cas. 1913E, 536. In Tenney v. Berger, 93 N. Y. 524, 529 (45 Am. Rep. 263), this precise subject was under discussion, and Judge Earl said: These decisions in other jurisdictions are 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 of 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 ence. 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 exercising a right which is an implied condition of the contract. If in such a case the client can be compelled to pay damages to his attorney for the breach of the contract, the contract under which a client employs an attorney would not differ from the ordinary contract of employment. In such a case the attorney may recover the reasonable value of the services which he has rendered, but he cannot recover for damages for the breach of contract. The discharge of the attorney by his client does not constitute a breach of the contract, because it is a term of such contract, implied from the peculiar relationship which the contract calls into existence, that the client may terminate the contract at any time with or without cause. We are aware that in certain jurisdictions a contrary rule has been adopted, and that it has been held that where the attorney is employed to perform services for an agreed sum and is discharged without cause and thereby prevented from the performance of the contract, the attorney may recover the full contract price. Scheinesohn v. Lemonek, 84 Ohio St. 425, 95 N. E. 913, Ann. Cas. 1912C, 737; Bartlett v. Odd Fellows Sav. Bank, 79 Cal. 218, 21 Pac. 743, 12 Am. St. Rep. 139; French v. Cunningham, 149 Ind. 632, 49 N. E. 797; Moyer v. Cantieny, 41 Minn. 242, 42 N. W. 1060; Kersey v. Garton, 77 Mo. 645; Myers v. Crockett, 14 Tex. 257; Mt. Vernon v. Patton, 94 Ill. 65. In Scheinesohn v. Lemonek, supra, it was held that because the attorney had performed no services under his contract, and the client had not been in any way benefited, the rule of quantum meruit was inapplicable. In French v. Cunningham, supra, the court held that the ordinary rule that the attorney could recover the reasonable value of his services does not apply "if the party doing the work has been prevented from completing it by the other party, in violation of the contract." In Myers v. Crockett, supra, the court said that: "While the attorney is thus bound to entire performance, and the contract as to him is treated as an entire contract, it is a singular feature of the law that it should not be treated as an entire contract upon the other side, for it is held that a client may discharge his attime, and be liable to pay him only for the serv torney, arbitrarily, without any cause, at any ices which he has rendered up to the time of his discharge." In Johnson v. Ravitch, 113 App. Div. 810, 812, 99 N. Y. Supp. 1059, 1061, Mr. Justice Gaynor said: his client subject to the rule that his client may The extracts just quoted from these two last-mentioned decisions correctly declare the rule of law which is applicable in this state. The rule secures to the attorney the right to recover the reasonable value of the services which he has rendered, and is well calculated to promote public confidence in the members of an honorable profession whose relation to their clients is personal and confidential. What has been said declaratory of the rule that the attorney is limited to a recovery upon a quantum meruit does not relate to a case where the attorney in entering into such a contract has changed his position or incurred expense, or to a case where an attorney is employed under a general retainer for a fixed period to perform legal services in relation to matters that may arise during the period of the contract. The plaintiff's right of action is limited to a recovery for the reasonable value of services rendered. It is claimed by the appellant that as the plaintiff's assignors were discharged under the contract March 30, 1900, and the present action was not commenced until October 15, 1908, this action is barred by the statute of limitations. "Where the attorney had entered upon and was proceeding to perform the services contracted for, and the conduct of the case was thus wrested from him by his client, without any 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 completion of the contract, his compensation was lim274, 83 Am. Dec. 683; Powers v. Manning, 154 ited to the value of the services he had then Mass. 370, 376, 28 N. E. 290, 13 L. R. A. 258. rendered. If, however, the services are brought to an end, the cause of action on behalf of the attorney is complete and the statute commences to run against the claim. As was said in Adams v. Ft. Plain Bank, 36 N. Y. 255, 260: "The test, therefore, being whether the statute begins to run or not, is, could an action be commenced at once for the demand?" In Bathgate v. Haskin, 59 N. Y. 533, 535, Judge Andrews said: "No right of action accrues for each successive service in the progress of the cause, and the statute does not begin to run against his claim for compensation until his relation as attorney in the suit has terminated. The client may terminate it at his pleasure." On behalf of the respondent it is urged that the plaintiff's claim is not barred by the statute because the contract under which the plaintiff's assignors were employed makes the compensation of the attorneys contingent upon the result of an award being made to the client. The award to the client was not made until October 20, 1902, and it is argued that the cause of action did not accrue until this time and, therefore, the claim of the plaintiff is not barred by the statute. If the plaintiff's assignors had not been discharged their cause of action would not have accrued until the contingency happened upon which their right to compensation was, by the contract, made to depend. Ga Nun v. Palmer, 202 N. Y. 483, 96 N. E. 99, 36 L. R. A. (N. S.) 922. The cause of action of the plaintiff's assignors, however, accrued when they were discharged by their client and the contract of employment terminated. That date was March 30, 1900, and the claim that then arose was barred by the statute of limitations when this action was commenced on October 15, 1908. It follows that the judgment must be reversed, with costs in all courts, and the complaint dismissed. WILLARD BARTLETT, C. J., and HISCOCK, COLLIN, CUDDEBACK, HOGAN, and POUND, JJ., concur. Judgment reversed, etc. (Opinion prepared by SEABURY, J., before his resignation and adopted by the court.) (219 N. Y. 192) In re ROSEDALE AND ST. LAWRENCE Appeal of KUSHNER. (Court of Appeals of New York. Oct. 17, 1916.) ATTORNEY AND CLIENT ~134(2)—CoмPENSATION CONTRACT FOR SERVICES. Where an attorney, einployed in a proceeding for the opening of an avenue upon an agreed [Ed. Note.-For other cases, see Attorney and Client, Cent. Dig. § 302; Dec. Dig. 134(2).] Appeal from Supreme Court, Appellate Division, First Department. Application by the City of New York relative to acquiring title to certain land. From an order of the Appellate Division (159 N. Y. Supp. 1105), reversing an order of the Special Term, which canceled an attorney's lien against an award in condemnation proceedings, there is an appeal concerning Morris Kushner. Frederick W. Hottenroth, of New York City, for appellant. George M. Mackellar, of New York City, for respondent. PER CURIAM. In March, 1907, the petitioner, Morris Kushner, retained the respondent as his attorney in a proceeding for the opening of Rosedale avenue in the city of New York. The contract of retainer, which was signed by the client, is in writing, and contains the following provision: "I agree to pay, and hereby assign to him [the attorney] for all services, fifty per cent. of the amount paid as purchase price, or recovered for damages over and above amount fixed by city expert. No other compensation whatever, either for expert witness fees or for any other disIn case of no bursement, is to be paid by me. award nothing to be paid by me." Thereafter and while the proceeding was still pending, the client gave notice of the cancellation of the contract, and terminated the attorney's authority to appear for him. An award of $6,139.70 was procured by other counsel. Interest upon this award has brought the recovery to $8,803.99. This is $3,197.77 in excess of the value fixed by the city's expert, and the respondent lays claim to 50 per cent. of the excess, or $1,598.89. He has filed with the comptroller a notice of lien on the award, and pending the determination of the controversy the comptroller In has withheld payment. a proceeding brought by the client to cancel the lien and compel payment by the comptroller, the Appellate Division, reversing the Special Term, has sustained the attorney's claim, and has held that he is entitled, standing upon his contract, to payment from the fund. We do not find it necessary, for the disposition of this appeal, to determine whether the contract contains an implied promise by the attorney to pay the expense of litigation, and thereby violates section 74 of the Code of Civil Procedure. McCoy v. Gas Engine & Power Co., 152 App. Div. 642, 137 N. Y. Supp. 591; Id., 208 N. Y. 631, 102 N. E. 1106; Ransom v. Cutting, 188 N. Y. 447, 81 N. E. 324. That section of the Code has been amended since the contract was made, and is now For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes [Ed. Note.-For other cases, see Bailment, Cent. Dig. §§ 25-31; Dec. Dig. 7.] 4. EMBEZZLEMENT 48(1)-OWNERSHIP OF PROPERTY-QUESTION FOR JURY. In a prosecution for larceny or embezzlement of bonds, by the business agent of a decedent, which he claimed she had given him, the trial judge erred in telling the jury that, in considering the case, they need not trouble themselves about the ownership of the bonds by decedent's executor, and when he refused to instruct, as requested, that in order to convict they must find that defendant was the agent or bailee of the executor, since the ownership of property alleged to have been stolen is always material in a prosecution for larceny, and the question, wherever it involves any matter of fact, cannot properly be withdrawn from the consideration of the jury, however clear the proof. section 274 of the Penal Law (Consol. Laws, I 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 compensation according to its terms. Under our recent decision in Martin v. Camp, 219 N. Y. 170, 114 N. E. 46, the client has the right to end the employment at any time before complete performance, and the value of the services then rendered becomes the measure of the attorney's reward. The petitioner has exercised that right, and the attorney's compensation even under a lawful contract must be limited accordingly. But the attorney now before us has made no attempt to prove the value of his services up to the date of the termination of his employment. He has taken his stand upon the position that even though the employment was terminated, he must be paid according to the contract. Our decision in Martin v. Camp shows that position to be untenable. In the absence of any claim by the attorney to recover on a quantum meruit, the court at Special Term was justified in directing that the fund be paid to the petitioner. The order of the Appellate Division should be reversed, and that of the Special Term affirmed, with costs in the Appellate Division and in this court. In a prosecution for larceny and embezzlement of bonds of a trust company, entitled as executor, the ownership of the property was sufficiently alleged in the indictment, although the trust company was not described therein as 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 individually. [Ed. Note.-For other cases, see Embezzlement, Cent. Dig. §§ 44, 45; Dec. Dig. 30.] 2. EMBEZZLEMENT 35 SHIP AS LAID. PROVING OWNER In a prosecution for grand larceny in the first degree for having stolen or embezzled five bonds, the property of a trust company, it was essential for the prosecution to prove the ownership as laid. [Ed. Note. For other cases, see Embezzlement, Cent. Dig. §§ 72, 75; Dec. Dig. 48(1).] 5. CRIMINAL LAW 823(4)-APPEAL-HARM LESS ERROR. ment of bonds by decedent's business agent who In a prosecution for larceny or embezzleclaimed to have been given the bonds by decedent, where the trial court referred to defendant's claim that the bonds had been given him cumbent upon defendant to prove a gift, but as the crucial point, stating that it was not inthat the people were bound to establish beyond a reasonable doubt that there had not been one, 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 instruct that to convict they must find that defendant was the agent or bailee of the executor, was harmless. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 1992-1994, 3158; Dec. Dig. 823(4).] Appeal from Supreme Court, Appellate Division, Fourth Department. Benjamin Hill Smith was convicted of grand larceny in the first degree, and from a judgment of the Appellate Division (172 App. Div. 826, 159 N. Y. Supp. 1073), affirming the conviction, he appeals. Judgment affirmed. P. Chamberlain, of Rochester, for appellant. John W. Barrett, Dist. Atty., of Webster (James Mann, Asst. Dist. Atty., of Rochester, of counsel), for the People. WILLARD BARTLETT, C. J. The indictment charges the defendant with grand larceny in the first degree, in three counts: (1) That on October 15, 1913, he embezzled five bonds of the Consolidated Coal Company of Maryland, worth $5,000, which he had in his possession as bailee of the Fidelity Trust Company of Rochester; (2) that he feloniously secreted, withheld, and appropriated to his own use the said bonds, being the personal property of the said company; and (3) that he stole the said bonds, its said prop [Ed. Note.-For other cases, see Embezzlement, Cent. Dig. §§ 55-59; Dec. Dig. 35.] 3. BAILMENT 7-RECEIPT OF BONDS OF AN-erty. OTHER-DEATH OF OWNER. Where a business agent receipted for bonds in his employer's behalf when she acquired them, and they remained in his custody as her agent without any change in the character of his title up to the time of her death, he there The theory of the prosecution was that the defendant acquired the bonds as agent and in behalf of a wealthy widow residing in Rochester, Mrs. Harriet F. Newcomb, and that 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 of the bonds alleged to have been embezzled, misappropriated, and stolen. [4, 5] The learned trial judge, therefore, erred when he told the jury that in considering 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 executor. 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 her tion 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 had 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 one instance a statement by her that she had given-certain valuable securities to Mr. Smith. [1, 2] The ownership of the property was sufficiently alleged in the indictment, although the Fidelity Trust Company was not described therein as the executor of Harriet F. Newcomb. "An executor or administrator has per se such a special property as will permit the goods to be described as his individually." 2 Wharton's Crim. Law (11th Ed.) § 1189. It was essential, however, for the prosecution to prove the ownership as laid. 2 Bishop's New Crim. Proc. § 752, subd. 1; Mahan's Case, 3 N. Y. City Hall Rec. 44; King v. State, 44 Ind. 285; Bell v. State, 46 Ind. 453. So imperative is this rule that it has been held in another jurisdiction that if the owner be described in the indictment as to the jurors unknown, and it appears in the evidence that his name is known, the defendant should be acquitted of that indictment and tried on a new one for stealing the goods of the owner by name. State v. Furlong, 19 Me. 225. [3] The requirement was fulfilled by the proof in the present case, unless Mrs. Newcomb had made a gift of the bonds to the defendant. He receipted for them in her behalf when she acquired them, and if they remained in his custody as her agent, without any change in the character of his title, up to the time of her death, he thereupon became a bailee thereof in behalf of her ex gift of the bonds to the defendant, the proof that they belonged to Mrs. Newcomb's executor was uncontroverted. The learned trial judge referred to defendant's claim that the bonds had been given to him as the crucial point in the case, saying in substance, also, that it was not incumbent upon the defendant to prove a gift, but that the people were bound to establish beyond a reasonable doubt that there had not been one. The jury were made clearly to understand that if the defendant had become the owner of the bonds by gift, he could not be convicted; and he did not question the executor's claim of ownership on any other ground. In the light, therefore, of the instruction to the effect that a gift to the defendant would absolve him from liability, the error which has been considered was equivalent to a ruling that if the defendant had not previously become the owner of the bonds by gift from Mrs. Newcomb, the Fidelity Trust Company of Rochester became the owner thereof as her executor by operation of law; and this could not possibly have harmed the defend ant. As to the other exceptions, we are satisfied with the disposition made of them in the opinion of the presiding justice of the Appellate Division. The judgment should be affirmed. HISCOCK, COLLIN, CUDDEBACK, and POUND, JJ., concur. HOGAN, J., not voting. (219 N. Y. 188) In re DUNFEE. (Court of Appeals of New York. Oct. 17, 1916.) Under the federal Bankruptcy Act (Act July 1, 1898, c. 541, § 17, 30 Stat. 550 [U. S. Comp. St. 1913, § 9601]), providing that a discharge shall release from all provable debts except liabilities for obtaining property by false pretenses or false representations, judgment against a bankrupt in favor of a surety company for false representations as to his financial standing in obtaining a bond was not canceled by his discharge in bankruptcy; obtaining the bond was obtaining "property" within the bank ruptcy act, which does not require that the property shall be obtained at the instant of making the false representations, nor that it shall pass directly to the bankrupt. [Ed. Note.-For other cases, see Bankruptcy, Cent. Dig. § 787, 792; Dec. Dig. 426(1). For other definitions, see Words and Phrases, First and Second, Series, Property.] 2. FALSE PRETENSES 4-OBTAINING PROPERTY DIRECTLY AND IMMEDIATELY. To commit the crime of obtaining property by false pretenses, the fraudulent party need not obtain the property at the instant of making the false representations, nor need it pass directly to him. [Ed. Note.-For other cases, see False Pretenses, Cent. Dig. § 1; Dec. Dig. 4.] 3. FRAUD 46 - FALSE REPRESENTATION COMPLAINT. In an action by a surety company against a party who procured it to become surety on his bond by false representations, the complaint, alleging that defendant, with the intent and for purpose of inducing plaintiff to execute the said bond, made the false representations complained of, and that plaintiff, relying thereon, did execute and deliver the said bond, was sufficient to permit recovery by the surety of the amount it was compelled to pay on account of defendant's default. [Ed. Note.-For other cases, see Fraud, Cent. Dig. 41; Dec. Dig. 46.] Appeal from Supreme Court, Appellate Division, Fourth Department. In the matter of the examination of Joseph Dunfee, judgment debtor, in proceedings supplementary to execution. From an order of the Appellate Division (94 Misc. Rep. 628, 159 N. Y. Supp. 703), affirming an order vacating a previous order in supplementary proceedings of the Onondaga county court, Frank Hasbrouck, as Superintendent of Insurance and receiver of the Empire State Surety Company, appeals. Order reversed, and question certified by the Appellate Division answered in the negative. and was compelled to pay $23,561.33 on account of Dunfee's default. The company then sued Dunfee for false representations as to his financial standing in obtaining the bond, and recovered judgment against him for $27,669.53, the penalty of the bond with interest and costs. Dunfee now asserts that this judgment against him was canceled by his discharge in bankruptcy. He alleges that obtaining the bond was not obtaining "property" within the meaning of the statute. That presents the question in the case. Section 17 of the Bankrupt Law provides: "A discharge in bankruptcy shall release a bankrupt from all his provable debts, except such as (2) are liabilities for obtain ing property by false pretenses or false representations. * The decision in the case so far has gone in favor of the judgment debtor, Dunfee, but I think that determination is erroneous, and that the judgment was not discharged. Obtaining the bond by false representations and paying the obligee the amount of the loss should be regarded as all one transaction, which amounted to obtaining money by false representations within the Bankrupt Law. The Bankrupt Law does not require that the property shall be obtained by the bankrupt at the instant of making the false representations, nor that it shall pass directly to the bankrupt. In criminal cases the rule relating to the crime of obtaining property by false representations is the same. CommonWealth v. Harkins, 128 Mass. 85; 9 Halsbury's Laws of England, 698. The parties in the case under consideration intended at the time the false representations were made that the bonding company should assume a contract of suretyship in Dunfee's behalf, and they must have had in contemplation all the results that naturally follow from such a contract. So when the surety company paid the loss to the obligee in fulfillment of its obligation, the law implied that the payment was at the request of Dunfee, and this implication arose from the contract of suretyship itself. As was said in Garr v. Martin, 20 N. Y. 306, 309: "Where one person advances money for another, in payment of the debt of the latter, it is deemed at the instant of its payment, to be the money, of the party for whose benefit the payment is made; so that in the eye of the law the debt is satisfied, not by the money of a third party, but by that of the debtor himself." [3] It is suggested that the allegations of the complaint are not broad enough to permit 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 respondent. "The defendant [Dunfee] with the intent and for the purpose of inducing the plaintiff to execute, seal, and deliver the said bond" made the false representations complained of, and that the plaintiff, relying thereon, "did execute, seal, and deliver the said bond." CUDDEBACK, J. [1, 2] This proceeding involves the meaning of the word "property" 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 |