
    BRAMBLE v. HUNT et al.
    (Supreme Court, General Term, Fifth Department.
    April, 1893.)
    1. Expert Evidence — Hypothetical Question — Personal Knowledge of Witness.
    In an action for professional services by attorneys, a hypothetical question put to an expert witness, calling upon Mm to take into account Ms own personal knowledge of the facts, is incompetent, as such a question should be based only on the facts therein stated and in evidence in the case.
    2. Same—Value of Attorney’s Services—Reversal on Appeal.
    The admission of incompetent expert evidence as to the value of an attorney’s services is no ground for reversing a finding in favor of the attorney, where the facts in evidence show that the estimate placed on the services by the expert was manifestly low.
    8. Same—Weight of Expert Evidence.
    Since the value of an attorney’s services is a matter peculiarly within the knowledge of the court, a mere opinion of a witness, though entitled to much respect, is not controlling, where the facts are disclosed.
    4, Appeal—Effect of Referee’s Opinion.
    A referee’s opinion, showing that he relied on incompetent expert evidence in finding the value of attorney’s services, cannot be resorted to for the purpose of reversing the findings.
    Appeal from judgment on report of referee.
    
      Action by Theodore E. Bramble against Elston Hunt and others for professional services as an attorney and counselor at law. From a judgment in plaintiff’s favor, defendants appeal.
    Affirmed.
    Argued before DWIGHT, P. J., and LEWIS, MACOMBER, and HAIGHT, JJ.
    Edwin Hicks, for appellants.
    George F. Slocum, for respondent.
   MACOMBER, J.

The plaintiff, between the years 1880 and 1887, rendered professional services as an attorney and counselor at law to the defendants, who were copartners in business at Honeoye Falls, N. Y., under the firm name of Hunt Bros., and who were engaged in the manufacture of woolen goods in their mills, situated on the outlet of Hemlock, Canadice, and Honeoye lakes. These services to the defendants grew out of the fact that the defendants, with many other mill owners, were interested and were parties to proceedings instituted by the city of Rochester to acquire the right to draw water from Hemlock and Canadice lakes for public use. The defendants were not, consequently, the sole parties interested in those proceedings. Nor has the learned referee attempted to hold them for any more than a fair proportionate share of the expense for the services of the plaintiff. No question, however, is made in regard to the liability of other persons to counsel. Indeed, we do not see how any question of liability of the defendants, jointly with other millers, could be raised because a nonjoinder of their associates was not set up in their answer, and, not having been pleaded, is unavailable to them, under sections 488, 498, 499, Code Civil Proc.

An examination of the testimony convinces us that the allowance made by the referee to the plaintiff, which was the sum of $250, was not excessive, but was rather a conservative estimate of the value of the plaintiff’s actual services to these defendants. But a somewhat embarrassing question is presented in respect to the mode by which this conclusion was reached by the referee. He says in his opinion that he has adopted as the proper measure of damages in this case the sum mentioned by the witness Beckley, who was called in behalf of the plaintiff. Mr. Beckley was asked:

“Question. Mr. Beckley, from what you know of the services of Mr. Bramble to the defendants, Hunt Bros., in this litigation, what you know of his standing as a lawyer, the responsibility- of the work, and from your personal knowledge of all the facts in the case, and assuming Mr. Bramble did prepare the trial brief of the evidence in all these cases that the Hunt Bros, claim, in round numbers, $19,500, and that they were awarded $8,500, what, in your judgment, were the plaintiffs services to these defendants worth?”

This was objected to as incompetent, and upon the ground that it involved the services performed in 19 other cases besides that of the defendants, and that the witness was not qualified to answer the question. The objection was overruled, and the defendants excepted. His answer was:

“1 should put the value o£ the services, in answer to the question put to me. at about $250, and if Mr. Hunt’s case had been tried alone I should put a much greater value on them.”

The referee says in his opinion:

•'It seems to me, therefore, that I may with propriety rely upon the judgment of Mr. Beckley, who was engaged in the proceedings on the opposite side throughout, and whose opportunities for knowing the value of tho services are better than those of one whose only knowledge is received from the statement of witnesses as to what the services were.”

That this question put to Mr. Beckley was incompetent hardly admits of doubt under the decision of Carpenter v. Blake, 2 Bans. 206, and Seymour v. Fellows, 77 N. Y. 180, which follow the well-established rule that a hypothetical question should be throughout what its name imports, and not a question calling for the personal judgment of the witness upon facts known to him outside of the question and outside of the testimony. This would ordinarily lead to a reversal of the judgment, and to a new trial. But we find that Mr. Beckley’s estimate of the value of the plaintiff’s services was the smallest of the three witnesses who were called and gave testimony upon that subject. The witness Briggs estimated them to be worth $350, and the witness Humphrey, $300. It is true that the referee was not bound either by the judgment of the witness Beckley or of that of the other two witnesses. But, he being the lowest in his estimate of the value of the services, and such estimate, being in our judgment, manifestly low, under the facts, we hardly deem it necessary to grant a new trial upon that ground. The opinion of the referee cannot be resorted to for the purpose of reversing his findings. Such findings show not Mr. Beckley’s estimate, but the referee’s judgment, from the whole case, of the value of the plaintiff’s services.

But it is urged by the learned counsel for the appellants that the hypothetical question put to the witnesses Briggs and Humphrey was also objectionable. It was, it is true, objected to as incompetent; but, on examination, the question, which is too long to quote in this opinion, shows that it did not contain the vice ascribed to the question put to the witness Beckley, in that it did not call upon these witnesses to take into the account their own personal knowledge of the extent and value of the services as actually rendered. But neither was the learned referee nor is this court confined in its judgment to a statement in figures of the value of professional services rendered by a lawyer. Being matters peculiarly within the knowledge of courts, when the facts are disclosed, a mere opinion of a witness, though entitled often to much respect, is not by any means controlling. We think, taking all of the circumstances together, that, while the question put to Mr. Beckley was incompetent, no harm has resulted to the defendants by reason of the error, and that consequently we are not compelled to reverse the judgment upon that ground. Judgment appealed from affirmed. All concur.  