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DAILEY v. SCHATZ

May 12, 1953

DAILEY
v.
SCHATZ.



The opinion of the court was delivered by: BYERS

BYERS, District Judge.

The plaintiff sues of recover a balance of $6,550. alleged to be owing to him from the defendant as an unpaid balance of the plaintiff's charges for professional services rendered. The facts are not in dispute.

 On May 5, 1943 the defendant's mother, Lena Schatz, entered into a written contract with plaintiff, retaining his services in the effort to obtain the release of her son, the defendant Morris, from custody in a federal penitentiary where he was serving a sentence of 25 years imposed in the District Court for the Southern District of New York on December 18, 1936. The amount of compensation was in part contingent upon the success of the plaintiff's efforts and since, as a result thereof, the defendant was released from custody on May 15, 1944, there is no question that the agreed sum ultimately to be due and payable was $9,000.

 Of the sum, $750, was paid prior to December 19, 1943. To secure the balance of $8,250. Lena Schatz executed and delivered a second mortgage on certain real estate then owned by her in the Country of Kings, bearing date May 5, 1943. The mortgage was delivered by the mortgagor to one Bernard Kronthal, her son-in-law, to be held by him in escrow. That mortgage was placed on record December 12, 1945.

 After his release the defedant had one or more interview with the plaintiff in the latter's office concerning the services that had been rendered, and on February 16, 1945 he paid $50. to the plaintiff, but no written receipt was asked for or given. Thereafter the plaintiff sought to collect the balance of his fee from Mrs. Schatz as appears from letters mailed to her on January 14, 1646, August 8, 1946 and October 10, 1946 (Plaintiff's Exhibit 5). An earlier letter to the same effect is plaintiff's Exhibit 6, dated December 29, 1944; a copy of that letter was sent to Kronthal, evidently as the basis of a request to him to deliver the mortgage which he then held in escrow so that the plaintiff could proceed with foreclosure.

 Probably because of the pressure thus brought to bear by the defendant had one or more interviews with him during the year 1946, as the result of which plaintiff agreed to assign this mortgage to a nominee of the defendant upon receipt of $1,650. on account of the unpaid balance. That transaction was accomplished on November 29, 1946 in the plaintiff's office, at which time Plaintiff's Exhibit 3 was signed by this defendant and delivered to the plaintiff:

 "November 29, 1946.

 "John F.Dailey, Esq.

 44 Wall Street

 New York City

 "Dear Mr. Dailey:

 "This will acknowledge that there is still due you under the contract dated May 5, 1943 between you and may mother Lena Schatz the sum of $6,550. I agree to pay you this sum as I am able and give you such security therefor as I am able.

 "Very truly yours,

 (Signed) Morris ...


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