Louis Mandel, Appellant, v. Max Liebman, Respondent

(December 12, 1950.) Louis Mandel, Appellant, v. Max Liebman, Respondent. [MAJORITY — Per Curiam:] Appeal from a judgment of the Supreme Court in favor of defendant, entered June 12, 1950, in New York County, upon a dismissal of the complaint by the court at a Trial Term at the close of plaintiff’s case. Per Curiam: In plaintiff’s case no proof of rendition of any services whatever was adduced. Plaintiff’s verified bill of particulars expressly avers that “ the action herein is not based on any claim for services ”. Under the express terms of the original agreement dated May 8, 1946, which involved, inter alia, an attorney and client relationship, the attorney, plaintiff herein, was not required to render any services to the defendant, the client herein; or, if he were to do so, it was conceded on the argument that he rendered none, and thus the earlier contract would, in any event, have been broken by plaintiff before the second contract was made. The agreement of November 11, 1947, was a modification of the 1946 agreement. That 1947 paper also by its terms expressly released the attorney from any requirement to render any services while it purported to retain for him substantial rights and benefits in defendant’s earnings, in part amounting to what might be called a tribute in perpetuity. Irrespective of whether the prior turnover order against the attorney was an adjudication binding herein, the agreement relied on was void, unconscionable and against public policy. The judgment in defendant’s favor dismissing the complaint on the merits should be affirmed, with costs to defendant-respondent. [DISSENT — Peck, P. J.] Peck, P. J. (dissenting). The agreement of May 8, 1946, by usual standards of construction, need not and should not be regarded as a nudum, pactum requiring no services on the part of the plaintiff. It appears that some services were rendered, but that the present action was not based on any claim for services rendered under the contract of May 8, 1946, but was based on a settlement agreement of November 11, 1947. Normally a settlement agreement would be binding regardless of the validity or merits of the claim compromised, and plaintiff would be entitled to rest on that agreement without going behind it and showing the services rendered under the prior agreement. Under the terms of this settlement agreement, however, the prior agreement was incorporated, and as modified was made the measure of plaintiff’s rights and defendant’s obligations under the settlement agreement. This arrangement as well as the original arrangement and the dealings between the parties in respect to both agreements are strange, and as there are questions as to the validity of the underlying agreement, including questions as to the nature of the services to be rendered and whether the agreement is conscionable, and a claim that the settlement agreement was a pretense and sham, it would be appropriate for the court on the trial of this action to look behind the settlement agreement and scrutinize the entire transaction from both sides and in respect to both agreements. I think that the court should not rule on the face of the former agreement, that the agreement was void and unconscionable and against public policy, although it may be shown to be such. The ground upon which the trial court dismissed the complaint at the close of plaintiff’s case, namely, that the cause was res judicata by virtue of a prior order entered upon a motion, was not tenable, so the judgment should be reversed and a new trial ordered unless there are no triable issues. To my mind there are triable issues as indicated. Therefore, I vote to reverse the judgment and order a new trial. Dore, Van Yoorhis and Shientag, JJ., concur in Per Curiam opinion; Peck, P. J., dissents and votes to reverse and grant a new trial, in an opinion in which G-lennon, J., concurs. Judgment affirmed, with costs. [See 278 App. Div. 637.]