The plaintiff, an attorney, has brought this action to recover the value of legal services alleged to have been performed for the defendant. The complaint is stated in quantum meruit and seeks $5,214.87 with interest from June 1, 1962, the date of an alleged demand for payment and the date upon which the plaintiff contends that his cause of action accrued. A bare summons was served on May 29, . The defendant contests the merits of the complaint. It also asserts a defense of the six-year Statute of Limitations (see Shaad v Hutchinson's Boat Works, 40 A.D.2d 757).
The plaintiff was first employed to act as its attorney by the defendant in 1952 or 1953, as the plaintiff has testified not on any retainer basis, but by being called upon to handle individual matters as they arose. About June, 1958, the defendant, through its officers, asked the plaintiff to do something about its real property tax assessments which it felt were excessive. The plaintiff told the defendant that his fee for handling its assessment problems would be one-half of any first year tax saving he effected at the grievance board level; that, if a tax certiorari had to be prosecuted in the courts, his fee would be at the election of the defendant, either the entire amount of the first year's tax saving that he accomplished or one half of the first two years' tax savings.
The plaintiff prosecuted a protest of the 1959 assessment by a tax certiorari proceeding to the point where he obtained a reduction of the assessment in a memorandum opinion from Honorable George T. Vandermeulen, Official Referee, dated March 1, 1960. No order was ever entered upon this opinion to effectuate a tax saving. Instead, the plaintiff used the opinion as a lever against the grievance board to attempt to force a reduction in at least a similar amount, and hopefully a greater amount, with respect to the subsequent years' assessments. He states that this strategy was approved by the defendant which hoped to obtain a greater reduction than that allowed by the official referee.
Schedule A annexed to the complaint itemizes the work done by the plaintiff on the defendant's tax problems. It shows that the final work was performed on July 28, 1961, which consisted of the plaintiff's conferring with the Jefferson County Assessors Office, writing the defendant advising it of the assessment reduction accomplished and writing the chairman of the board of assessors acknowledging its reduction of the assessment.
The plaintiff's letter to the defendant was actually dated July 31. It summarized his accomplishments: "We have received notification from Mr. Richard Fitchette, Chairman of the Town of Alexandria Board of Assessors that your tax assessments have been reduced for 1962 * * * Since this case commenced, we have obtained a total assessment reduction on Holland Street of $22,600.00 and on the Boat Works of $16,900.00, or a total reduction in assessments of $39,500.00. This represents a tax saving each year of approximately $1,975.00".
The letter went on to suggest that any further legal proceedings were at least temporarily halted. "I did, however, advise the board that if they granted the above reduction this year, we would not bring a tax certiorari proceeding this year. As I told you, they have discharged their former attorney, and I am sure that they are as anxious as you folks to avoid any future litigation."
Having been given a summary of the plaintiff's accomplishments with the implication that there was to be no "future litigation" and having been told that the plaintiff had effectuated a first year tax savings of "approximately" $1,975, the defendant tried to get a bill from him for his services. By letter of October 20, 1961 it asked for a statement of services up to September 1, 1961. (The plaintiff and defendant had other business dealings at the time and the demanded statement was to include all fees for all services rendered up to that date.) This letter also disputed the plaintiff's assertion that he had saved the defendant $1,975 in taxes.
The plaintiff gave the defendant no written bill. He testified that he gave an oral statement to the defendant reciting the same amount for his services that he later asked in Schedule A annexed to the complaint. At least he says that he thinks he did, because he contends that this was not really a bill in the sense of being a demand for payment, but was merely a statement to show what the defendant owed him so that the latter could include it as an expense in that year's income tax return which was on an accrual basis, and because he usually gave orally such a figure to the defendant annually. We cannot credit this testimony, nor accept this explanation, ...