
    William F. Coston, Resp’t, v. Benjamin F. Morris, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 11, 1889.)
    
    1. Action—Services rendered—When services not deemed gratuitous
    Where in an action to recover for services rendered in the manufacture of a rocket gun the plaintiff attended the trials of the gun at the defendant’s request, and there was no agreement that such services should be gratuitous. Held, that the plaintiff was entitled to recover therefor.
    :3. Reference—When order regular.
    Where a reference is assented to by the defendant as a condition of a postponement of the trial, the order made thereupon is regular, and cannot afterward be objected to by the defendant as improper.
    Appeal from a judgment entered upon the report of a referee.
    This action was brought to recover a sum of money .alleged to be due for services rendered by the plaintiff in making and manufacturing a rocket gun and rockets for life-saving purposes. The defendant admitted the making ■of the gun, but claimed that the prices charged therefor were excessive, and not in accordance with the stipulated price agreed upon. He also denied the plaintiff’s right to recover for services rendered in attending a trial of the ;gun.
    When the action came on for trial the defendant asked for an adjournment. The court declined to grant the request, •and directed the plaintiff to proceed, unless the defendant stipulated to refer the same, which was done. The defendant contends that the reference was improper.
    
      George W. Blunt, for app’lt; William M. Mullin, for resp’t.
   Pratt, J.

The decision of the referee was as favorable to defendant as the case permitted.

The price of goods was adopted. in accordance with the written estimate, and not according to the inflated valúatian of the plaintiff. It is not denied that plaintiff attended the trials of the gun at defendant’s request, and it is not claimed that there was any agreement that the services should be gratuitous. No different value was suggested for that service than the one testified to by plaintiff, which we cannot say was exorbitant.

The reference was assented to by defendant as a condition of postponement of the trial, and the order, thereupon made was regular.

Judgment affirmed with costs.

All concur.  