Jablonka v. Piasecki

In an action by an attorney to recover a balance alleged to be due under a retainer agreement, defendant appeals from an order granting summary judgment to plaintiff, and from the judgment entered thereon. It was asserted by defendant in opposition to plaintiff’s motion that plaintiff was retained to collect money due defendant, and that defendant’s claim, with respect to which plaintiff’s services were performed, was settled by an agreement to pay the amount due in installments. Defendant contended that the retainer agreement, under which plaintiff was entitled to receive 30% of all amounts recovered by defendant, was amended before the settlement so as to provide that plaintiff should be paid 30% of each installment as it should be received by defendant, and that the action was consequently premature. Plaintiff contended that the retainer agreement was amended, without consideration, after his compensation had been fully earned, and that he had rescinded his voluntary agreement to accept payment in installments, because of defendant’s breach thereof. Order and judgment reversed, with $10 costs and disbursements, and motion denied, without costs. A triable issue is presented by these conflicting contentions which may not be summarily decided on affidavits. Nolan, P. J., Adel, Wenzel, Schmidt, and Murphy, JJ., concur.