Title Guarantee and Trust Company, Respondent, v. Charles Stemberg, Appellant

Title Guarantee and Trust Company, Respondent, v. Charles Stemberg, Appellant. Second Department, April 19, 1907. ■ Contract A when owner liable for services in searching title— attorney and client — rules governing contract of retainer. . When a contract provides that compensation for services in searching a title is payable Whether-the title be accepted or not, the owner is'liable for suc h services.. . . ■ The rule that an attorney seeking to avail himself of a contract made with his client must establish affirmatively that it was made by the latter with full knowledge of all the material circumstances known to the former, and was in every respect free from fraud, etc., has no' application to mere contracts of retainer, whereby the relation of attorney and client is established. Appeal by the defendant, Charles Steinberg, from a judgment of the Municipal Court of the city of ¡New York, borough of Queens, in favor of the plaintiff, rendered on the 6th day of February, 1906. William O. Miles, for the appellant. Edwa/rd M. Perry, for the respondent. [MAJORITY — Jenks, J.:] Jenks, J.: This is an action for services in searching a title. The answer .is denial that the services were at defendant’s request, that the agreed value was $73 and a defense that the plaintiff offered to make, but did not make, a loan applied for upon the property. I think that the judgment should be affirmed. There is no doubt that the defendant upon his application to the plaintiff signed an agreement whereby the fees sued for were specified, and wherein it was provided that such charges should be paid whether the title was accepted or not. It is testified, although the defendant denies it, that the entire contract was read to the defendant at the time of the execution. It is established that the work was done and that such charges were for it alone. Each party blames the other in that the loan was not made. The evidence is sufficient to warrant the conclusion that the plaintiff would have made it but for the omission of the defendant to cure within his power certain defects in the title. Moreover, payment for the work was not contingent upon the success of the application because the parties had agreed to the contrary. There is nothing unfair or unconscionable in an agreement that the applicant should pay absolutely for the necessary work of testing the security. The learned counsel for the appellant makes the point that as the services were in the nature of those of an attorney at law, the relation of these parties was that of attorney-and client and, therefore, there wás an obligation upon the plaintiff as upon an attorney who contracts-with.Ms client under the doctrine of Whitehead v. Kennedy (69 N. Y. 462) 'and like cases. Conceding the relation as analogous to that of attorney, and client this rule does not obtain as to mere contracts of - retainer whereby the relation is established. (Clifford v. Braun, 71 App. Div. 432; Boyd v. Daily, 85 id. 581; .affd., 176 N. Y. 613.) Present — Hiesohbeeg, P. J., Woodward, Jenks, Hookee and GrAYNOE, JJ. Judgment of the Municipal Court unanimously affirmed, with costs.