
    James H. Case, Respondent, v. Hiram A. Hotchkiss, Appellant.
    It is enough that an attorney is employed to carry a case on appeal to a higher court. He is not responsible for the merits or demerits of the appeal, but is entitled to payment for his services in either case. Hence, in an action to recover for such services, the question relative to the argument on the appeal at the General Term, “Was there any thing to argue ? ” was properly excluded.
    Where a bill is presented and no objection is made to it until after suit is commenced on it, the account may properly be regarded as an account stated, and interest be- allowed from the time the claim was presented.
   Pabkeb, J.

This is an action to recover for the services of the plaintiff’s assignors, as attorneys and counselors at law. Only two exceptions appear in the case to have been taken upon the trial, and these raise the only questions which we can consider.

The first was to the decision of the court sustaining the' plaintiff’s objection to the following question, put by the defendant’s counsel to the plaintiff’s witness on cross-examination: “Was there anything to argue?” The question' referred to the argument of an appeal at the General Term, in an action which the plaintiff’s assignors defended for this defendant. The witness (who was one of said assignors), had already testified that the appeal was taken under defendant’s direction, which evidence was uncontradicted in the case, and that he and his partner had paid other counsel for arguing it at the General Term. . ■

The manifest point of the inquiry was, not whether the case was before the General Term in a condition to be argued, but either, whether there was any question presented for argument in the case as made, or, whether there were any merits in the question presented to the court. Whatever was intended, the question was properly excluded. Whether the case presented to the court any question for its consideration, or whether the question presented had any merit or not, was quite immaterial, inasmuch as the attorneys had heen employed hy the defendant to carry the case to the General Term, and were therefore bound to see that it received the attention necessary to obtain the decision of the General Term sought for by the appeal, hieither was it material with reference to the question,, whether an argument was in fact had. The obligation of the attorneys to be in attendance, by themselves or counsel, was the same in either case, and the fact that there was nothing to argue in the sense intended by the question, would have been no proper ground of inference that it was not, in fact, argued, in the legal sense of submitting the case to the General Term for decision. Besides, it became a matter of no importance in the case, from the fact that it was subsequently shown that the amount was liquidated by the defendant’s admission, and no question was made as to the amount.

The other exception is to the charge of the judge, in which he instructed the jury that they might allow interest upon the amount of the account.

It appeared by uncontradicted evidence that the account as claimed in the complaint was rendered to the defendant on the 25th of January, 1859, and no objection was ever made to it in respect to the amount or otherwise prior to the commencement of the action, which was more than a year, and the trial, had over two years after such presentation. The account was, I think, properly regarded as an account stated. (Lockwood v. Thorne, 1 Kern. 170; Towsley v. Denisen, 45 Barb. 490; Philips v. Belden, 2 Edw. Ch. 1.)

Being so regarded, it drew interest from the time when it was liquidated, which was at the time when it was rendered, inasmuch as no objection was ever made to it. ( Walden v. Sherburne, 15 Johns.409; Patterson v. Choate, 7 Wend. 441; Feeter v. Heath, 11 id. 447.)

On the merits, therefore, the judgment is clearly right and should be affirmed. But, moreover, the appellant, when the cause was reached on the calendar, neither appeared to argue, nor subsequently furnished papers for the court. For this reason the respondent is entitled to an affirmance of the judgment, and I think, also, to ten per cent damages for the delay/occasioned by-the appeal.

All the judges concurring,

Judgment affirmed.  