
    Joanna T. Fitzpatrick, Respondent, v. John P. Howard, Appellant.
    Second Department,
    January 26, 1912.
    New trial—inexcusable error of jury — evidence.
    Plaintiff received from the defendant, acting as a lawyer for her or her family or both, a check for $1,552.50, drawn by an insurance company. This money.the plaintiff turned over to one who later undertook to return the money at a meeting in defendant’s1 office. There was some conflict of testimony as to what took place at this meeting, plaintiff ' claiming that defendant received the money, and defendant claiming that he had none of the money except $900 paid him on account for services. The plaintiff claimed only $1,152, but the jury returned a verdict for $1,532.82. Held, that under the evidence the error of the jury was so inexcusable that there should be a new trial.
    A contract retaining the defendant to perform legal services for the plaintiff, alleged to have been made before the meeting at defendant’s office, and which plaintiff denied having executed, was admissible in view of defendant’s claim that the money which he admitted receiving at the meeting was in payment of the fee promised him.
    • Appeal by the defendant, John P. Howard, from a judgment of the Supreme Court in favor of the plaintiff, éntered in the office of the clerk of the county of Kings on the 10th day of May, 1911, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 5th day of June, 1911, denying the defendant’s motion for a new trial made upon the minutes.
    
      Stephen C. Baldwin, for the appellant.
    
      Edward T. Curran, for the respondent.
   Thomas, J.:

On August 22, 1905, plaintiff received from the defendant, acting as a lawyer for her or her family, or both, a check for $1,552.50, drawn by an insurance company. This money was turned over by the plaintiff to one Langan, and through the plaintiff’s importunity Langan undertook to return the money, and a meeting for that purpose was arranged at defendant’s office. At the meeting were the plaintiff, her daughter, Mrs. Curran, the wife of respondent’s attorney, Langan and defendant. A sum of money was delivered by Langan at that" time. The plaintiff’s testimony, supported by that of her daughter, is that Howard received the money. The defendant’s testimony is that Langan handed the money to the plaintiff, who delivered it to her daughter to count, whereupon the mother directed her to take out $900 and pay it to the defendant, which the daughter did, and that the mother retained the balance, whatever it was. The plaintiff and her daughter state that neither of them had the money or counted it. The defendant states that he had none of it save the $900 paid to him. Defendant’s testimony is to the effect that previous to this meeting the plaintiff had said to him that she wished to arrange to pay Trim $900 which she owed him, presumably undei a contract for services, and discontinue certain litigations, and that she and her daughter came to his office for the purpose of receiving the money from Langan and making such payment, and that $900 was delivered to him at that time for1 the purpose of discharging her obligation of $1,000, whereof $100 had been earlier paid. This the plaintiff disclaims. It does not appear from the evidence of the plaintiff or her daughter or the defendant how much money was paid at the time save as the defendant. admits that he received $900. The defendant participated in the delivery to Langan of a receipt of $1,552.50, but this receipt is dated October 2, 1905. However, the defendant admits that a receipt was given at that time. The jury returned a verdict, for $1,532.82, and judgment was entered for that amount. The verdict must have been predicated upon the receipt. This was an entire' misapprehension. The plaintiff claimed only $1,152.50.

I consider that a jury capable of such a misunderstanding of the evidence was incapable of making a just decision. The respondent’s attorney concedes that the money paid' was no more than $1,152.50,'and then states that ¡the jury found that amount. This is in contradiction of the clerk’s minutes and the judgment. It is within the power of the court to reduce the verdict, but the only sum to which it could be reduced under the evidence is $900, for1 there is not the slightest proof that $1,152.50 was paid. Howard did receive $900. He states that the plaintiff retained an amount, but what the total amount is does not appear. I consider that, in view of an error so inexcusable, there should be a new trial.

Another question arises: Plaintiff states that the meeting at Howard’s office was oh September 25, 1905; she repeats this date in her evidence from time to time. Her daughter fixes the dat,e of the meeting as of September twenty-fifth, although she later is doubtful whether it was not in October. Howard fixes the date as September twenty-fifth; later he states that it was subsequent to a retainer, and regards October as the month. The receipt was dated October 2, 1905, and probably that was the date when the money was paid. But on September twenty-fifth the plaintiff and her children had, in writing, retained the defendant to do work, for the performance of which he was entitled to receive $1,000, as defendant would show by a retainer which was excluded. If the retainer was executed at the time of the meeting, the defendant could not have done the work under it and been entitled to use it for the purpose of aiding the probability that he was testifying truly respecting the purpose for which the money was paid. But if the money was paid in October it is possible that the defendant might have earned the $1,000, and that he was entitled to receive his pay therefor. The plaintiff had testified that she never signed a paper or retainer employing him to represent her. To meet this statement, and to illustrate that the defendant was entitled to receive the money which he says he did receive in payment of the fee promised him, the retainer should have been received in evidence. It is unnecessary to consider the question of an attorney’s lien, beyond the suggestion that such lien is not pleaded.

The judgment and order should be reversed and a new trial granted, costs to abide the event.

Carr, Woodward and Bich, JJ., concurred; Hirschberg, J., concurred in result.

Judgment and order reversed and new trial granted, costs to abide the event.  