
    Charles W. Klebisch, Respondent, v. Charles Siedler, Appellant.
    (New York Common Pleas—General Term,
    February, 1894.)
    In an action to recover money expended upon certain premises and for legal services rendered for defendant, the answer set up as a counterclaim that certain property had been conveyed to plaintiff by defendant, for which payment was made by receipting for former claims against the estate of which defendant was receiver, and for past and future legal services, and asked that the credit for future services be set off against the claim in suit. Plaintiff testified that the conveyance was not a sale, but in trust, and that out of its proceeds, if a sale was effected, he was to reimburse himself and hold the balance as a credit for the defendant, and that no sale had been made. It appeared that he had presented a claim for services, from which he had deducted the ' credit, which bill was put in evidence without proof of the services. The court refused defendant’s request to charge that the jury should not credit plaintiff as against the credit for future services with the value of any services except such as were proven. B.eld, error; that this deprived defendant of the right to a conceded credit if the jury found that plaintiff held the title to the aforesaid premises in his own right.
    
      Appeal by defendant from an affirmance by the General Term of the City Court of a judgment in plaintiff’s favor, entered upon the verdict of a jury.
    The action was for moneys laid out and expended upon the premises 69 East One Hundred and Sixth street, and also for legal services in examining the title to the same premises and endeavoring to procure a mortgage thereon. The defenses are discussed in the opinion.
    
      Charles Wehle, for respondent.
    
      Tillotson (& Kent, for appellant.
   Daly, Ch. J.

The plaintiff was attorney for the Lorillard Brick Works Company, and when the defendant was appointed receiver of that company the plaintiff continued to render him professional and other services. All of the transactions between the parties had reference to the receivership and the management of its property, no personal or private interests of the receiver being involved; but he contracted personally with the plaintiff and is liable in a personal action. The premises 69 East One Hundred and Sixth street, an unfinished flat, were part of the estate, and having been sold under foreclosure were bought in by the receiver for the benefit of his trust. After the foreclosure the plaintiff entered into negotiations with the receiver with a view to purchasing the property himself, and the contention of the defendant is that the plaintiff’s outlays (with the exception of a small bill for looking glasses and the commissions paid to brokers in a subsequent attempt to make another sale when the negotiations with.plaintiff fell through) were for his own benefit as prospective purchaser. This was denied by plaintiff, and as the jury found in his favor for nearly the full amount claimed, we must regard the plaintiff’s cause of action as established.

There were several counterclaims, however, interposed by defendant’s answer, but only one of them need be noticed, since that alone is involved in the consideration of an alleged erroneous instruction to the" jury. It appears that another piece of property belonging to tlie estate, No, 59 East One Hundred and Sixth street, was conveyed to the plaintiff for a stated consideration, being $4,115 above the incumbrances, which the plaintiff paid by receipting in full for all claims he held against his former client, the Lorillard Brick Works Company, settled at $2,500, and by receipting to the receiver for $1,615.57 for past and future legal services rendered to him, the past services being represented by a bill for $917.99, leaving the credit for future services at $697.58. It was this balance of $697.58 which the defendant demanded should be set off against or applied upon the demand in the action.

Upon this plea of counterclaim or set-off issue was taken, and the plaintiff testified that the transaction of the conveyance of 59 East One Hundred and Sixth street to him was not a sale, but an arrangement by which he was to hold the property in trust for the receiver and the incumbrancers, and if he effected a sale to a bona fide purchaser at $24,000 he was to apply tlie $4,115 excess over the incumbrances in the manner designated by the receipts, viz., reimbursing himself with $2,500 for his claim against the company, $917.99 for his claim against the receiver, and holding the balance, $697.58, as a credit available to the latter.

He further testified that no purchaser had been found for the property; that he still continued to manage it as trustee, and that he was not indebted to defendant in any sum as consideration for the conveyance to himself. Nevertheless, he has rendered a bill to the receiver for legal services for $1,670.38, crediting $697.58 as received on account, and this bill he put in evidence without, however, proving the performance or value of the items.

The case, therefore, went to the jury upon this counterclaim or set-off of $697.58, upon the issue whether that sum was to be charged against the plaintiff as part consideration of the conveyance to him of 59 East One Hundred and Sixth street, or was to become operative as a charge only upon the condition of his effecting 'a sale of the equity at $4,115. If the latter were the case, it constituted no counterclaim to the present action ; if the former, it was a credit which defendant had a right to have applied upon the demand in this action, unless it had heen absorbed in payment of other services. Upon this latter point the defendant’s counsel asked the court to charge that they should not credit the plaintiff as against the balance of $697.58 with the value of any services except ■such as have been proven in this action. This was declined, and the defendant duly excepted.

The refusal to charge as requested deprived the defendant of the right to a conceded credit, if the jury believed that plaintiff held the title of 59 East One Hundred and Sixth street in Ms own right, by permitting plaintiff in effect to extinguish the credit by a mere claim of services without proof of performance or value; and a new trial must, therefore, be ordered. The- absence of a special finding by the jury on the main question, whether the title was taken by plaintiff as trustee, or not, makes it, impossible to ascertain how that issue was decided, and leaves the refusal to charge material error.

The judgment should be reversed, new trial ordered, costs to appellant to abide the event.

Bischoff and Pryor, JJ., concur.

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