
    Robert J. Gray, Resp’t, v. Charles H. Bliss, App’lt.
    
      (City Court of New York, General Term,
    
    
      Filed May 25, 1892.)
    
    Evidence—Agiieement to account.
    PlaintiS assigned to defendant a claim against one G-., to be used as a counterclaim in an action brought by G. against defendant; who executed a written agreement to account to plaintiff for such claim if he recovered the same or had the same allowed in such suit. In an action to recover the portion allowed in that action, Meld, that the agreement was not one to pay, but only to render an account and the balance due; that an agreement to allow defendant the costs and disbursements of the action brought by G. could properly have been the subject of a contemporaneous, independent oral contract, and that evidence thereof was admissible.
    
      Appeal from judgment in favor of plaintiff.
    
      Olin, Rives & Montgomery, for app’lt; Miller & Miller, for resp’t.
   Newburger, J.

In 1882, defendant was indebted to Gal-land & Co., contractors, for some work done in the erection of a building.

The plaintiff was a sub-contractor, and had a claim against Galland for eight hundred and thirty-four and 20-100 dollars ($834.20).

Plaintiff assigned his claim to the defendant to be used by defendant as a counter-claim in a suit brought by Galland against defendant herein.

At the time of' this assignment, the defendant, by his attorney, delivered to plaintiff a writing wherein he agreed to “ account to plaintiff for the claim assigned to him, if be recovered the same or have the same allowed in the suit of Galland against him.”

An action was brought by Galland against Bliss. Bliss set up, as a counter-claim, the claim of Gray, which had been assigned to him.

On the trial, Galland recovered judgment for one thousand and one hundred ($1,100) dollars, less four hundred ($400) dollars, with interest

The present action is brought by Gray to recover four hundred ($400) dollars, with interest.

The answer admitted all the allegations of the complaint, but set up as a defense, that it was agreed between plaintiff and defendant, at the time of making the agreement set up in the complaint, that the defendant was to resist the enforcement of Galland’s claim against him, with the view of protecting Gray’s claim against Galland, and that the assignment of said claim to defendant was upon the understanding and agreement that the cost of defending the action to be brought by Galland was to be borne by Gray, and that the costs of the action paid to Galland with a reasonable counsel fee should be deducted from the amount of plaintiff’s claim.

On the trial of the ’action defendant called his attorney as a witness, and asked him a number of questions tending to show that at the time of the assignment from plaintiff to defendant, and the agreement from defendant to plaintiff to account for all moneys collected under such assignment, there was a further agreement that defendant should be allowed all the counsel fees, costs and disbursements incurred by him, and the amount of such counsel fee, costs and disbursements so incurred.

To all such questions plaintiff objected on the ground that this action having been brought on written contracts no paroi evidence can be introduced to change or vary them.

The objections were sustained, to which defendant excepted.

Thé contract between plaintiff and defendant was that defendant should account to plaintiff for all moneys received by him from Galland.

The agreement to account was not an agreement to pay, as the trial justice seems to have held, but was an obligation on the part of the defendant to render the plaintiff a statement or record of financial or pecuniary transactions, with their debits or credits, or ■of money received and paid, and the balance on hand or due.

The agreement did and was intended to do no more than to require defendant to render a proper statement of all moneys received by reason of the assignment from plaintiff.

The contention of the defendant that he was to be allowed counsel fee, costs and disbursements, may properly have been the subject of oral contract between them, contemporaneously with the writing and independently of it. Ferguson v. Baker, 116 N. Y., 257; 26 St. Rep., 626; Dodge v. Zimmer, 110 N. Y., 43; 16 St. Rep., 657.

The trial justice therefore erred in excluding the testimony offered.

For the reasons stated the judgment should be reversed and a new trial ordered, with costs to abide event.

McCarthy, J., concurs.  