
    Luther L. Kellogg and Others, Respondents, v. John T. Rowland, Appellant.
    
      Attorney and client — what does not establish an account stated, between them — the ■delivery of a check by the alleged client to the attorney may be explained:.
    
    The mere fact that- attorneys have sent to a party an account for services rendered and that the account has been retained by.him without objection, does not give the attorneys a cause of action against him unless an employment to render the services-mentioned in the account be established. .
    
      Where in such a case the attorneys, in order to establish the relation of attorney and client, prove that a check payable to their order was given by the alleged, client, the latter should be permitted to show under what circumstances and why the check was given.
    Appeal by the defendant, John T. Rowland, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 5th day of December, 1898, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 10th day of December, 1898, denying the defendant’s motion for a new trial made upon the minutes. '
    
      Charles D. Ridgway, for the appellant.
    
      L. Laflin Kellogg, for the respondents.
   McLaughlin, J.:

The defendant appeals from a judgment entered against him upon the verdict of a jury and from an order denying a motion for a new trial. The action was brought to recover for legal services. ’ Two causes of action are set forth in the complaint; one on an ¡recount c stated, the other for services rendered and moneys paid, laid out and expended. All the services embraced in both the first and second causes of action related to one litigation, but in different stages thereof. The defendant Rowland and one Claffy were sureties on a bond upon which an action was begun against them by the Bath Gas Light Company; Claffy alone was served with process. The plaintiffs were employed by Claffy to defend the action, and they conducted the defense and rendered service in the suit from its commencement until it was finally disposed of in the Court of Appeals. " Although Rowland was never served with process and never appeared in the Bath Company action, the present plaintiffs claim that he is liable for one-half of their charges in that suit, and that he agreed with them to pay one-lialf of such charges because he was liable upon the bond in the same way that Claffy was. The plaintiffs’; witness gave evidence tending to show that Rowland agreed to pay half the expenses of defending the suit, and in support thereof produced in evidence a check for $100, drawn by Rowland on- his bank to the order of the plaintiffs, which-'check was duly paid. The check, it was claimed, was given by Rowland to the plaintiffs on account of a retaining fee in the Bath Company suit. The employment of the plaintiffs by the defendant is alleged to have been made in October, 1890; in November, 1893, the plaintiffs. claim to have rendered an account for services to the defendant up to that date, and they aver that such account was received and retained without objection thereto, and that the same became an account stated between the parties as to the balance appearing on the statement. The defendant Rowland denied the employment of the plaintiffs, or that he ever became indebted to them, or that they rendered,any service to him,, and in his testimony he denies facts sworn to by one of the plaintiffs relating to conversations and acts by which he was sought to be bound to the plaintiffs.

- There was a distinct issue on the question of employment. Rowland’s account of his relations with the plaintiffs- was, that he, recognizing to some extent the fact that Cl.affy’s defense, if successful, might inure to his benefit, agreed with Claffy to pay to him some portion of the expenses of ■ defending the Bath Company suit. He showed that the $100 check was not sent by him to the plaintiffs, but that he gave if to Claffy, who forwarded it to the plaintiffs. The defendant also' swore,, in substance, that no relation of attorneys and client was ever established between him and the plaintiffs. On the whole testimony the court directed a verdict in favor of the plaintiffs on the cause of action on the account stated.

This direction was manifestly erroneous. The mere sending of an account to the defendant and the retention of that account would not give the plaintiffs a cause of action, unless an employment to render services mentioned in that account was also established. That was directly an issue. The testimony upon the subject was conflicting, and it was an issue which should have been decided by the jury.

There was also a serious error in the rejection of evidence made at the trial. One of the most important factors in the case was the $100 check. The claim of the plaintiffs was that that check proved a relation existing directly between them and Rowland. Claffy was called as a witness by the defendant.; he testified that the check was made out at his office by Rowland and handed to him by Rowland, and that he (Olaffv) either took it or sent it down to the plaintiffs. He was then asked whether Rowland drew that check at his (Claffy’s) request, and that was excluded. The question should have been answered. . Rowland’s contention was that his agreement concerning sharing expenses of the litigation was a personal contract made with Claffy, indefinite as to amount and enforcible by no one but Claffy, if enforcible at all. He had the right to explain how and why that $100 check upon which the plaintiffs so confidently relied was given, and he should have been permitted by this witness to show that.it was at Claffy’s request and only in conformity with an arrangement he had made with Claffy.and for Claffy’s benefit alone. By giving this check the appearance of being a payment on account for services rendered by the plaintiffs to Rowland, they sought to have it inferred that the relation of attorneys and client existed between them and Rowland. The excluded evidence would have tended to show that such an inference had no foundation.

The judgment and order appealed from must be reversed and a new trial ordered, and with costs to the appellant to abide the event.

Yah Brunt, P. J., Patterson, O’Brien and Ingraham, JJ., concurred.

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