
    Thomas F. Daniels, Appellant, v. J. Baldwin Hand, Respondent.
    (Supreme Court, Appellate Term, First Department,
    November, 1916.)
    Judgment — in action to recover stenographer’s fees — evidence — costs — appeal.
    A judgment in favor of defendant in an action brought upon his promise to pay the plaintiff his fees as a stenographer in taking the testimony upon a reference, reversed, and judgment directed in favor of plaintiff for the full amount claimed, with interest, and costs in the court below and on appeal.
    Appeal by plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, sixth district, in favor of the defendant.
    Percival E. Jackson, for appellant.
    Richard B. Hand, for respondent.
   Shearn, J.

Upon the second day of a hearing before a referee the plaintiff, a stenographer, refused to continue to report the proceedings unless he was assured of payment. According to the plaintiff’s testimony, the defendant, who was associated with one Newman and others as counsel for one Ida Von Claus-sen, upon a hearing to determine her sanity, said: ‘ ‘ Mr. Daniels, I want this case reported and I will be responsible to you personally for the minutes.” The plaintiff had reported the first day of the hearing under these circumstances, as testified to by him: “ I had just finished another case in the Sheriff’s office; and I went down and asked them if they wanted this case reported. Mr. Honeyman I addressed first. He said ‘ I guess so; ’ he did not know. Then he turned to Mr. Hand and said, ‘ I suppose you want this case reported? ’’ Mr. Hand said,1 yes.’ Mr. Newman said, 1 Yes, certainly. ’ I said, 1 all right, ’ and that is all that occurred at that time." On the morning of the second day of the hearing plaintiff received a letter from defendant saying: “We do not of course want the minutes in re Ida Von Claussen written out, just for the present at all events; we may later. * * * That is all we want just now; just the proceedings reported; not written out." Plaintiff replied by letter before the second day of the hearing expressing his surprise at the letter and saying: “ I do not want to force the testimony upon you; at the same time I must be paid for services I render, and the only suggestion I can make is that I charge you ten dollars an hour for reporting the proceedings which you will agree to pay at the close of the case and then if a copy of the minutes is ordered later I will give you credit on the bill for the amount you have paid for reporting." ' These were the circumstances under which plaintiff refused to proceed to report the second day of the hearing until it was agreed that he should be paid. Upon the statement of the defendant that he would be personally responsible for the minutes, plaintiff proceeded and reported the entire proceeding, being engaged sixteen hours. Defendant having declined to pay, plaintiff brought this suit for the agreed compensation, that is, $160 for sixteen hours reporting at $10 an hour.

The plaintiff’s version of the controversy was fully corroborated by two entirely disinterested witnesses, the assistant district attorney in charge of the case and the sheriff’s jury clerk, who were present at the second day of the hearing, each of whom testified to plaintiff’s refusal to proceed unless it was agreed that he should be paid for his work and that the defendant thereupon stated to the plaintiff that he would be personally responsible for the payment of plaintiff’s bill. The defendant denied this, but admitted that he had no clear recollection of what took place saying that either Mr. Newman or himself “ said that we would be responsible. Whether I used the word ‘ we ’ or ‘ Mrs. Von Claussen’ would be responsible for the—would pay for the minutes; and Mr. Newman did say then that the respondent, that is Mrs. Von Claussen, would be responsible for the minutes; and any discussion that ensued was on that line. ” Defendant did not call Mr. Newman or either of two other lawyers, Messrs. Honeyman and Keech, who were associated with him and who were present, to corroborate this vague account of what took place. The plaintiff rendered a bill to both the defendant and Mr. Newman, but téstified that this was at the request of the defendant, which was denied by the defendant. If the truth with respect to this be as defendant contends, it is not at all controlling, for if the defendant had said: “ We [meaning Mr. Newman and himself] will be responsible,” as he thought he may have done, the defendant would still be liable to the plaintiff. His real contention is that he gave plaintiff to understand that Mrs. Von Claussen would be responsible. The defendant’s testimony on this head, above quoted, is so vague and uncertain that the plaintiff’s testimony, corroborated by two disinterested witnesses, stands, practically uncontroverted. It is not a case of the weight of evidence, for there is substantially no pro.bative evidence on the side of the defendant. The trial justice may have adopted the unfounded contention of the defendant that his promise, if established, was invalid unless in writing. At any rate the judgment is wholly unsupported by the evidence and should have been rendered in favor of the plaintiff.

Judgment reversed, with $30 costs, and judgment is directed to be entered in favor of the plaintiff and against the defendant for the sum of $160 with interest from March 14,1914, together with the costs in the court below.

Guy and Bijur, JJ., concur.

Judgment reversed, with costs.  