therefore, the agreement of separation and the deed to Bottomley, as null and void, the Special Term gave to plaintiff all the relief to which she was entitled, because it placed her in the same position she was in when these instruments were executed by her, and will leave her ultimate rights in the real estate to be determined by the final outcome of the copartnership dealings.

We think, too, that the granting of an extra allowance was error, because there was no basis for it. The subject-matter of the action, as bearing upon the question of an extra allowance, was the value of plaintiff's dower right. An allowance can only be granted where the subject-matter of the action has a value, and such value is shown. Heilman v. Lazarus, 90 N. Y. 674; Conaughty v. Saratoga County Bank, 92 N. Y. 406. As the value of the dower interest could not at the time of the trial be determined, because the property was subject to unascertained claims against the partnership, there was not, as stated, any basis for the extra allowance.

The judgment should accordingly be modified by striking out the provisions awarding plaintiff an inchoate right of dower and an extra allowance, and, as so modified, it should be affirmed, with costs and disbursements of this appeal to the appellants. All concur.

(90 App. Div. 474.)

BERG V. BADENSER UNDERSTUETZUNGS VEREIN VON

ROCHESTER, N. Y.

(Supreme Court, Appellate Division, Fourth Department. January 26, 1904.) 1 BENEFICIAL ASSOCIATION-SICK BENEFITS-AMENDMENT OF BY-LAWS.

The constitution of a beneficial association provided that in case of sickness a member should receive $4 weekly for 6 months, and for the next 3 months $2, and for the following 3 months $1, whereupon the benefit should cease, but after 4 weeks the member might again report sick. This was amended to provide that $5 should be paid for 26 weeks' illness, and $2 for the next 13 weeks, and for the succeeding 13 weeks $1 weekly; that then the sick benefit should cease, and that at the expiration of this length of time a member might not again report himself sick for the same disease; also that, when a member should receive $300 in sick benefits, he should not be entitled to any more. The amendment was made at a time when no member could have paid in more than $58. Held, that the amendment was reasonable and within the power of the association, and that no vested right was impaired.

2. SAME ESTOPPEL TO CONTEST.

A member of a beneficial association attended the society's meetings regularly, and knew of an amendment to the constitution increasing both dues and benefits, and for nine years acquiesced therein; presumably remaining a member for the purpose of receiving death benefits, which were also increased by the amendment. At the time of the amendment he had drawn the maximum amount thereby fixed for sick benefits, having contributed less than a sixth of such amount. His estate received largely increased death benefits under the amendment. Held, that both he and his administratrix were precluded from contesting the validity of the amendment respecting sick benefits, and fixing a maximum therefor.

Appeal from Monroe County Court.

Action by Andrew Berg against the Badenser Understuetzungs Verein von Rochester, N. Y., in which Fredericka Berg, on plaintiff's

and 120 New York State Reporter

death, was substituted as his administratrix. Judgment for plaintiff, and defendant appeals. Reversed.

Argued before MCLENNAN, P. J., and SPRING, WILLIAMS, HISCOCK, and STOVER, JJ.

Forsyth Bros., for appellant.

Herman W. Morris, for respondent.

STOVER, J. The action was originally brought by Andrew Berg, and upon his death his administratrix was substituted as plaintiff. Plaintiff's intestate was a member of defendant, a society formed for the purpose of rendering financial aid to sick members, and burial for deceased members. The constitution in force to June 1, 1893, provided that, in case of sickness, members should receive four dollars weekly for six months, "for the next three months two dollars, and for the following three months one dollar per week, whereupon the benefit shall cease. But after the expiration of four weeks he may again report sick." In May, 1893, the provision as to benefits was amended so as to read as follows:

"Sec. 2. The full amount of sick benefits, namely, five dollars, shall be paid for twenty-six weeks of illness, for the next thirteen weeks two dollars shall be paid weekly and for the next thirteen weeks one dollar weekly. Then the sick benefits shall cease, and at the expiration of this length of time a member may never again report himself ill for one and the same disease. * * Also, when a member has received sick benefits (estimated from the time of his entrance into the organization to the day of his death or withdrawal from the organization) to the amount of three hundred dollars, he shall not be entitled to any further financial aid in case of illness."

This went into effect May 31, 1893. Plaintiff's intestate was sick from February 21, 1902, to June 7, 1902-about 15 weeks. It was admitted that plaintiff's intestate had during the years 1892 and 1893 received more than $300 for benefits. Plaintiff sued for $5 per week during his sickness, from February 21 to June 7, 1902.

The amendment which took effect May 31, 1893, was not an unreasonable one, and was within the power of the defendant to adopt. Having reference to the object of the association and the continuance of the fund, it would seem to be a wise provision, and one that none could complain of. Prior to the amendment of May, 1893, the entrance fee to members was, between the ages of 20 and 40, $5, and between 40 and 50 (10 years), $10, and the dues, 50 cents monthly. The society was formed in 1885, so that at the time of the amendment (May, 1893) no member could have paid, outside of the death benefits, which are not under contention here, more than $58; that is, $10 entrance fee, and monthly dues of 50 cents for 8 years. There is nothing unreasonable or inequitable in the amendment limiting the gross sum that any member might draw. That gross sum is so large that every member can receive a fair and full return for the sum paid in, and its limitation sufficient to prevent the depletion or destruction of the fund by one or a few members; and one who had already received many times the amount paid in could not complain that he had not received his fair proportion of benefits. Any member who had not received benefits had an opportunity, in case of sickness, to avail himself of the fund;

and one who was then in health, and had received more than $300, could not complain that he had not a fair share of the funds of the association. No vested right was impaired. It was within the power of the association to make any reasonable amendment to its constitution in furtherance of the objects of its organization, and we cannot say that the amendment made was not such an one.

Plaintiff seeks to recover $5 per week, being the increased sick benefits under the amendment of May 31, 1893. Her intestate, the original plaintiff, attended regularly the meetings of the society; knew of the amendment, and the increased dues and benefits thereby imposed and conferred; and for nine years had acquiesced. Other members have paid the increased dues, and he has remained a member presumably for the purpose of receiving the death benefits of the association, which are largely increased by the amended constitution. He seeks to recover all of the benefits of the amendment, and yet repudiate the obligation, the performance of which is necessary to enable the association to pay the benefits. This he cannot do. He had drawn at the time the amendment went into effect more than $300, and had contributed less than $50. His estate receives largely increased death benefits under the amendment. Neither has or had any cause for complaint that they have not received a fair share of the benefits of the association, nor any right to any further sum from its treasury.

The judgment should be reversed, with costs, and judgment ordered for defendant upon the merits. All concur; MCLENNAN, P. J., on second ground only.

(91 App. Div. 30.)

VOOTH V. McEACHEN.

(Supreme Court, Appellate Division, First Department. February 5, 1904.) 1. ATTORNEY AND CLIENT-CLAIMS-SETTLEMENT-BREACH OF DUTY-LIABILITY OF ATTORNEY-FINDINGS-CONFLICTING EVIDENCE-APPEAL.

In an action against an attorney for alleged breach of duty in settling a claim for $840.66 placed in his hands for collection by plaintiff, the latter testified that, shortly after an action was brought on the claim, plaintiff's creditor served a third-party order on the person sued, whereupon defendant advised plaintiff to drop his action; that thereafter, and after defendant had already settled the claim for $250, he induced plaintiff to sign certain blank papers, on the misrepresentation that these papers were necessary for defendant's use on the trial of the action, which he afterwards filled up with a contract of retainer providing for a 50 per cent. contingent fee, and giving him authority, in his discretion, to settle the claim, and a general release and assignment of the claim. Plaintiff was corroborated as to the signing of the papers in blank, but defendant testified that the papers were fully written up before they were signed, and in this he was corroborated by his managing clerk, but the latter's testimony as to the time of his signing the same as a witness was untrue. Held, that a verdict in favor of plaintiff was not so unsupported by the evidence as to require a reversal on appeal.

2. SAME NATURE OF ACTION-DEMAND.

Where plaintiff sued his former attorney for alleged misconduct in the settlement of a claim of $840.66 for $250, of which the attorney paid $125 to a judgment creditor of the plaintiff on a third-party order, and retained the balance for his fees, the action was not for conversion, but for a breach of the attorney's duty to plaintiff, so that no demand was neces sary before suit brought.

and 120 New York State Reporter

3. SAME-DAMAGES-EXCESSIVENESS.

Where plaintiff sued his former attorney for breach of duty in settling a claim of $840.66 for $250, and it appeared that only half of the claim was collectible, a verdict in favor of plaintiff for $211.16, which made an allowance to defendant for his services, was not excessive.

Laughlin, J., dissenting.

Appeal from Special Term, New York County.

Action by Henry W. Vooth against James C. McEachen. From a judgment in favor of plaintiff, and from an order denying defendant's motion for a new trial, he appeals. Affirmed.

Argued before VAN BRUNT, P. J., and McLAUGHLIN, O'BRIEN, INGRAHAM, and LAUGHLIN, JJ.

Abram I. Elkus, for appellant.

Charles G. F. Wahle, for respondent.

O'BRIEN, J. The action was brought to recover damages against the defendant for breach of duty in settling certain claims which the plaintiff had placed in his hands as attorney for enforcement. The plaintiff was a brother of Herman C. Vooth, deceased, and alleged that he was employed by his brother in his lifetime. After his death the plaintiff claimed that he had an account against his brother's estate for money loaned, labor performed, and moneys advanced to said Herman C. Vooth, deceased, amounting to $840.66. He employed the defendant as an attorney to enforce the payment of the claim, and after its presentation to the administratrix of the deceased, and rejection by her, the defendant, at the instigation of the plaintiff, brought suit in September, 1891, against the administratrix. Prior to April, 1892, a creditor of the plaintiff, named Streit, brought an action against the plaintiff, and obtained and served a third-party order on the administratrix, which order enjoined the administratrix from disposing of or paying over to plaintiff any money or property until the further order of the court. In May, 1892, plaintiff testified, he saw the defendant, who advised him to drop his action against the administratrix, for the reason that it would be a long while before the case was tried, and that the estate of his brother would not, in any event, be able to pay more than 50 per cent. on the dollar on any claims, and that, in view of the thirdparty order which had been obtained by one of his creditors, he thought it would be better for him to accept the sum of $250, which he told him he had been offered in settlement of the action. Prior to May 21, 1892, and on or about April 7, 1892, the defendant had settled the action brought by the plaintiff against the administratrix for the sum of $250, of which sum $125 was paid to the attorneys for the judgment creditors of the plaintiff, and the balance was retained by the defendant for his services in the action, pursuant to what he claimed was an agreement of retainer providing for a 50 per cent. contingent fee, and giving him authority, in his discretion, to settle the claim in suit; and upon this agreement the defendant relied upon the trial. In addition. to this retainer agreement, the defendant produced at the trial a general release and an assignment of the claim, both of which were signed by the plaintiff on or about their date, which was April 7, 1892. With respect to these papers, the plaintiff said that on or about the 6th or 7th

of April, 1892, the defendant asked him to sign some papers in blank, which he stated were necessary for use upon the trial of his action, and that the defendant's three exhibits in writing were the three papers which he signed in blank, relying upon the representations made as to the purpose for which they were to be used, and he did not know, nor was he told, that they were intended to be filled out so as to embody an authorization to settle or release or assign the claim. The defendant testified that the retainer and authorization was a written and completed document, which the plaintiff executed when he retained him, in April, 1891, which is the date written in the agreement. The other two papers bear date as of April 7, 1892.

The plaintiff was, in part, corroborated by a witness named Leander, who testified that he went with the plaintiff to the defendant's office, and while there the plaintiff, after talking with the lawyer about papers, showed them to the witness, and said:

*

"I have got to sign some papers.' * I says, "To what?' He says, "To these blank papers.' * He says, * * * Will I sign these papers?' 'Well,' I says, 'they are blank. There is nothing to them.' And with that his lawyer said, 'If you cannot trust your lawyer, who are you going to trust?' I said, 'You can sign your name if you want to.' There

was nothing on the papers. One was a sort of bluish paper. The other was on legal cap, they generally draw up. There was nothing on either one of them. When they were handed to me. There was printing on one. A regular form. And the other was a blank paper, to my knowledge. He signed those papers in that condition in my presence. * * He said [the defendant], 'I must

have these papers to settle up the case.''

The defendant, in his contention, was supported by the testimony of his former managing clerk—a man by the name of Booth, who signed the retainer agreement as a witness-and by the certificate of a notary named Norton, who is dead, and who took the acknowledgment of the release. The assignment of the claim produced in evidence, which was acknowledged before the defendant as commissioner of deeds, is entitled to little greater weight than the defendant's verbal testimony.

This summary of the issues, and of the testimony presented on either side to support them, together with excerpts from such part of the testimony as we deem most material, shows, we think, that the questions of fact were properly submitted to the jury for their verdict. The amount awarded the plaintiff, of $211.16, with interest, was not, in view of the testimony given, excessive damages to award, if the plaintiff were entitled at all to recover. The principal contention upon this appeal is that the verdict was against the weight of evidence. Upon this contention, were it not for the natural concern which the court is bound to take in all differences between attorney and client, we would not feel warranted in more than stating the conclusion from the summary already made. This concern, therefore, must be our excuse for extending an opinion in a case where so small an amount is involved.

We have already referred to the variance which exists between the testimony of the plaintiff and the defendant upon the main issue presented, as to whether or not the latter, in disregard of the plaintiff's express instructions, settled his claim and cause of action for $250. In considering the contention that the defendant, by a clear preponderance of evidence, established that the plaintiff knowingly assented to

86 N.Y.S.-28