
    John Bogart, Appellant, v. Lippman Tannenbaum, Respondent.
    (Supreme Court, Appellate Term,
    March, 1907.)
    Attorney and client — The relation with the client — Compensation —' Action — Presumptions and burden "of proof.
    In an action by an attorney to recover for services rendered, where the defendant sets up a separate agreement that the attorney would render the services without any charge 'therefor, it is error for the court to refuse to charge that the burden of proof as to the separate agreement is on the defendant.
    Appeal by the plaintiff from a judgment of the City Court of the city of New York, entered in favor of the defendant upon the verdict of a jury, and also from an order denying a motion for a new trial.
    Bogart & Bogart (Benjamin N. Oardozo, of counsel), for appellant.
    Thomas J. Bannon (Franklin Bien and Josiah Canter, of counsel), for respondent.
   Hendrick, J.

The complaint in this case alleges the rendition of services as an attorney of the value of $500; that-the defendant agreed to pay that sum therefor and that the same has not yet been paid. The answer is, first, a genera] denial; and, secondly, for a separate and distinct defense,, the defendant alleges in substance that the plaintiff agreed that, if the defendant would withdraw an appeal which he had taken from a judgment in favor of one Dattelbaum, who was the plaintiff’s father-in-law, the plaintiff .would- render any and all services in an action to be brought against one Joseph Rundbaclc and one Edward Rundback to recover the amount of said judgment, and would assist in any suit that had been brought, or was about to be brought, without any charge whatsoever, and that, relying upon the said agreement, and having entered into the same with the plaintiff, the defendant caused said appeal to be withdrawn, and that the services mentioned in the complaint were the services performed under that agreement. The employment of the plaintiff and the value of his services were admitted upon the trial. Evidence was adduced by the defendant to establish the separate defense set up in the answer; and, at the conclusion of the case, the following requests and exceptions were noted in the record: “ Defendant’s counsel: I ask your Honor to charge that the burden of proof is upon the plaintiff. The Court: I so charge. Exception. Defendant’s counsel: I ask your Honor to charge that if the testimony is so evenly balanced that they cannot tell who has the greater weight of the evidence, then the defendant is entitled to a verdict. The Court: I so charge. Plaintiff’s counsel: I except. I ask your Honor to charge the jury that the burden of proof as to the separate agreement is on the defendant. The Court: I decline to so charge. Plaintiff’s counsel: I except.” I do not think these rulings can be sustained. The plaintiff’s case was made out when he proved his retainer, the rendition of his services, and their value. It was then incumbent upon the defendant to establish his separate defense, namely, that the services were to be gratuitous in the event of the defendant’s complying with the plaintiff’s request to withdraw the appeal from the judgment against plaintiff’s father-in-law. It was error to refuse to charge, as requested by the plaintiff’s counsel, that the burden of proof as to the special agreement was on the defendant. Merzbach v. Mayor, 163 N. Y. 16; Smith v. Long Island R. Co., 102 id. 190. As was said in Merzbach v. Mayor, supra,The jury were' instructed in substance that the burden was on the plaintiff to establish an agreement that he should be paid, whereas they should have been instructed that the burden was upon the defendant to establish an agreement that he was not to be paid.”

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

Gilderslebve and Davis, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  