
    LYON et al. v. WILCOX.
    (Supreme Court, Appellate Division, Second Department.
    March 27, 1903.)
    1. Attorneys’ Fees — New Trial.
    In an action by attorneys to recover fees earned in a suit instituted-against a railroad company, defendant claimed that in making a settlement of that suit it was understood that he should have a certain sum, net, and that plaintiffs’ compensation should be paid by the railroad company, and produced the treasurer and attorney of the railroad to testify to the transaction. Eelé, that a new trial to obtain the testimony of the-president of the railroad and the employs who audited defendant’s claim, as to the transactions connected with the settlement of the railroad suit was properly refused.
    2. Same — Agreement.
    In an action to recover attorneys’ fees for a suit which defendant had'settled himself defendant claimed that he was to have the entire sum,.. and that plaintiffs were to receive their compensation, i£ any, from the other party to that suit, hut the jury found that defendant had agreed to pay plaintiffs a certain per cent, of the amount recovered. Held, that it was immaterial what plaintiffs had received from the party with whom the settlement was made.
    Appeal from Orange County Court.
    Action by John W. Lyon and Frank Lybolt against Ransom Wilcox. Order denying a motion for a new trial, and defendant appeals.
    Affirmed.
    The following is the opinion of BEATTIE, J., in the county court:
    The effect of all the evidence offered by the defendant was that the plaintiffs had agreed to prosecute an action in his favor against the Port Jervis & Monticello Railroad Company for twenty per cent, upon the amount of the •recovery as their compensation for services rendered. The action was settled before trial. The defendant claims that the understanding was that, upon the settlement being made, he should have $500 net, and that the whole of the plaintiffs’ compensation for their services should be paid by the railroad company, if paid at all. The plaintiffs claimed that there was no such agreement, but that the defendant was to pay them a reasonable amount for then-services, in addition to such amount as they could get from the railroad company as their costs and disbursements. The case was submitted to the jury in such manner that, if they had believed the testimony in behalf of the defendant that he was to have $500 net, their verdict would have been for the defendant. The case has been twice tried, and there can be no question that ordinary diligence would have developed what is now claimed to be newly discovered evidence in favor of the defendant. Mr. Goddefroy was the presi■■dent and general superintendent of the railroad company, and the claim, as paid, was audited by Mr. Cox, an employé of the company. There was no .apparent reason why they should not have been deemed as important witnesses for the defendant as Mr. Lillie, the treasurer of the company, or Mr. Parshall, its attorney, and, like them, produced as witnesses upon the trial to testify as to their knowledge of the whole transaction. Whether the $300 paid by the railroad company to the plaintiffs as attorneys included claims other than their claim for costs and disbursements in the Wilcox action does not seem to me to be important. The defendant himself entered into negotiations with the railroad company for the settlement of his claim, and agreed •to accept $500. If, as the jury have found, he was still to pay his attorneys twenty per cent, upon the amount he received, it does not avail him that the railroad company paid to the attorneys $300 additional. If the plaintiffs had made the settlement, and had concealed from the defendant that $800 was to be paid by the railroad company, then the question of the items or charges which involved the payment of $300 more than was paid to the defendant would be of importance. I think the verdict of the jury as to the weight -of evidence was conclusive, and that the motion for a new trial should be ■denied, with costs.
    Argued before GOODRICH, P. J., and BARTLETT, JENKS, WOODWARD, HIRSCHBERG, and HOOKER, JJ.
    Frank Marvin and C. E. Cuddebock, for appellant.
    John W. Lyon and Frank Lybolt, for respondents.
   PER CURIAM.

Order of the County Court of Orange County denying .motion for new trial on the ground of surprise and newly -discovered evidence affirmed, with costs, on the opinion of the county judge.  