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Morgan v. Drewry

Supreme Court of New York, Appellate Division

November 9, 1954

Morgan
v.
Drewry

APPEALS (1) from an order of the Supreme Court at Special Term (DINEEN, J.), entered February 9, 1954, in New York

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County, which granted a motion by defendant-respondent for summary judgment dismissing the complaint, (2) from an order of said court, entered January 25, 1954, which denied a motion by plaintiffs for an order pursuant to rule 113 of the Rules of Civil Practice directing an assessment of damages, and (3) from an order of said court, entered June 24, 1954, which denied a motion by plaintiffs for reargument of defendant-respondent's motion for summary judgment.

COUNSEL

Emerson F. Davis of counsel (Charles R. Van de Walle with him on the brief; Hamlin, Hubbell & Davis, attorneys), for appellants.

Francis X. Nestor of counsel (John P. Gorman with him on the brief; Gorman & Nestor, attorneys), for respondent.

OPINION

COHN, J.

This is an action brought by plaintiffs, a firm of New York attorneys, against their former client H. P. Drewry, S. A. R. L., a foreign corporation (hereafter called Drewry) to collect the sum of $25,000 for services allegedly performed on Drewry's behalf in an action instituted in the Supreme Court, New York County, in December, 1946. In their complaint plaintiffs allege that they have acquired a lien under section 475 of the Judiciary Law of the State of New York on a cause of action which Drewry brought, through plaintiffs as attorneys, in this State based upon a judgment which Drewry had obtained in the courts of England against defendant-respondent Aristotles S. Onassis (hereafter called Onassis); and pray for a foreclosure of their attorneys' lien upon such cause of action and a subsequent settlement thereof by Onassis.

The facts are as follows: In March, 1942, Drewry obtained a judgment against Onassis in the High Court of Justice in England, King's Bench Division, in an amount equal to $362,489.05. Thereafter Drewry engaged plaintiffs to commence an action against Onassis on this judgment in the Supreme Court of this State. This court held that the action did not then lie because Drewry was under disability of the Trading with the Enemy Act. (Drewry, S. A. R. L., v. Onassis, 266 App.Div. 292, affd. 291 N.Y. 779.)

In October, 1946, and after the termination of the world-wide hostilities, Drewry again retained plaintiffs to commence an action in the New York Supreme Court on the same judgment against Onassis. This, plaintiffs did in December, 1946. Onassis defended the New York action on the English judgment. Not until an appeal from an order denying a motion to dismiss the complaint was affirmed by this court, did Onassis serve his

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answer. That action is still pending. Onassis had negotiated with plaintiffs and ultimately offered to settle the pending action in New York and the underlying judgment for 93,500 pounds sterling. At this point in the negotiations with Onassis, Drewry, upon learning of plaintiffs' claim for a fee of $25,000 for their services, instructed plaintiffs to terminate all further discussions with Onassis.

Meanwhile, early in 1947 Onassis instructed a solicitor in England to reopen the proceedings in the British courts. After a trial in the King's Bench Division of the High Court of England, on March 29, 1949, the judgment against Onassis was set aside upon the ground that the former manager of Drewry and its solicitors were guilty of breach of warranty to act (Onassis v. Drewry, S. A. R. L., 82 Ll. L. R. 565). On appeal to the Court of Appeals of the High Court, that judgment was reversed because of failure of adequate proof, but the court granted leave to Onassis to appeal to the House of Lords, on condition that Onassis pay into court the sum of 50,000 pounds (Onassis v. Drewry, S. A. R. L., 83 Ll. L. R. 249). The condition was met and the case was set down for argument in the House of Lords. Negotiations in England were then entered into in the Fall of 1950 between Drewry and Onassis for the purpose of adjustment. These culminated in London in 1951 in an agreement pursuant to which the English judgment was settled for 110,000 pounds. The judgment thus compromised, was the very claim upon which the pending New York action was grounded. Reopening of litigation in England in 1947 caused the New York action to be held in abeyance pending the outcome of the renewed English litigation. News of the settlement was concealed, so it is alleged, from plaintiffs, the New York attorneys, who had been paid no fee for their services here.

On motion of Onassis for summary judgment dismissing the complaint, the Special Term has held that 'the fund was not created as the result of the services rendered by plaintiffs and at no time was within the jurisdiction of the court', and that plaintiffs accordingly were not entitled to recovery. From the order granting summary judgment dismissing plaintiffs' complaint this appeal is taken. A motion by plaintiffs for an order directing summary ...


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