
    Jacob Rapoport, Respondent, v. Allenhurst Gardens, Inc., Appellant.
   Per Curiam.

This is an appeal by defendant-appellant from a judgment in the sum of $10,217.55, entered in favor of plaintiff-respondent after a nonjury trial.

The action is to recover a fee for legal services rendered by plaintiff. The complaint recites that it is based upon a written agreement, dated March 10, 1960, by the terms of which plaintiff’s fee was to be equal to 10% of the monthly savings to defendant, limited to one year, resulting from the negotiation, modification and later assignment of a mortgage on property owned by defendant. The services had been rendered between October, 1959 and March, 1960 at the request of defendant.

The judgment awarded, based upon 10% of the monthly savings, as found, for a 12-month period beginning February 1, 1960, with interest thereon from March 10, 1960, is modified for the reason herein stated.

The court found, and we agree with its conclusion, that there was a valid written agreement that plaintiff was to recover 10% of the monthly savings, which the court determined to be $7,984.47, for a period of one year, beginning February 1, 1960. However, on October 3, 1960, when this action was commenced, only nine months’ savings, or deferments, had been effected. Plaintiff’s right of recovery, being expressly conditioned upon monthly savings as they accrued, cannot be projected to include a percentage of sums expected to be saved in the future.

The granting of the motion to conform the pleadings to the proof would not serve to extend this coverage. Such sums, for the remainder of the period, may be recovered in a separate action.

Accordingly, the judgment appealed from is modified, on the law and the facts, to award plaintiff 10% of the sum of $7,984.47 from February 1, 1960, to the date of the institution of this action, a period of nine months, with interest from March 10, 1960, such interest to be calculated on the sums as they accrued. As so modified the judgment is affirmed, with costs to the respondent.

Rabin, J. P., Valente, McNally, Stevens and S'teuer, JJ., concur.

Judgment unanimously modified, on the law and on the facts, to award plaintiff 10% of the sum of $7,984.47 from February 1, 1960, to the date of the institution of this action, a period of nine months, with interest from March 10, 1960, such interest to be calculated on the sums as they accrued. As so modified the judgment is affirmed, with costs to the respondent. Settle order on notice.  