Mosk v. Scheinberg

SHINN, J.

Plaintiff appeals from a judgment of nonsuit in favor of defendant Sherman and the two corporate Nasmah, Inc., and Van Nuys Theatre Corporation,

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and a judgment in favor of defendants Scheinberg and Horwitz on the merits in an action for the reasonable value of legal services alleged to have been performed for the several defendants by plaintiff’s assignors, Messrs. Desser and Ran. The court found that the attorneys were not employed by the defendants or either of them and that they performed no services for the defendants of any value or at the latter’s special instance and request.

Upon the appeal from the judgment of nonsuit the question is whether plaintiff’s evidence would have supported a judgment against the defendants whose motions for nonsuit were granted. We are of the opinion that the evidence was such as to necessitate the decisions that were made, not only upon the motions for nonsuit but upon the merits as well.

Defendant Sherman, who is the son of defendant Scheinberg, was employed as a messenger and law clerk and later was associated as an attorney in the office of Desser and Ran. After he was admitted to practice he entered into an arrangement with Desser and Ran under which he was to receive a small weekly compensation, was to have the use of office space, telephone, secretarial and other services, and was to pay Desser and Ran 50 per cent of all legal fees he earned and collected. Certain fees were charged to his clients, including Scheinberg and Horwitz, on billheads of Desser and Ran; the fees were paid to Desser and Ran and were divided between the firm and Sherman. The billheads of Desser and Ran were used as a matter of convenience. Scheinberg and Horwitz were partners in the ownership of the stock of the corporate defendants and of other corporations, which they wished to place in a business or operating trust and they advised with Sherman concerning the procedure to be followed. The latter, with the assistance of trust department executives of a bank and the use of one of the bank’s forms and with some collaboration upon the part of Desser and Ran, drafted a declaration of trust, which was executed by Scheinberg and Horwitz. During the absence of Sherman from the city Desser and Ran prepared an agreement for dissolution of partnership for Scheinberg and Horwitz. After the matter of the preparation of the declaration of trust had extended over a period of nearly a year, Sherman severed his connection with the firm, established an office elsewhere, and several months thereafter the