
    FRANCIS A. ROBBINS, Respondent, v. HENRY F. PULTZS, Appellant.
    
      Attorney and client—Evidence.
    
    In an action brought by a client against her attorney, to recover moneys alleged to be wrongfully detained by him, the main fa¿t at issue was whether a certain sum of money was paid by her to the attorney in satisfaction of his charges for services, &c., or whether the said sum was delivered t.o him upon the understanding that part thereof was to be received in full satisfaction of his said charges, and the remainder to be used in settling certain claims which were (as alleged by the client) falsely stated by said attorney to exist,—Reid, error to refuse to charge that the jury might consider the value of the attorney’s services, and the disbursements incurred by him for said client, as having a bearing upon the probabilities of the case.
    Before Sedgwick and Freedman, JJ.
    
      Decided April 5, 1880.
    Appeal from judgment and order denying motion for new trial.
    
      N. E. Pultzs, appellant, in person, and Erastus New, of counsel, among other things, urged :
    The refusal to charge that the jury might consider the value of the services rendered by the defendant to the plaintiff and the amount of the disbursements in determining whether defendant consented to accept $500 in full for his services and disbursements, was clearly error, and under the rule laid down in Cohen v. Kelly (35 Super. Ct. 42), a new trial should be granted. In Cornell v. Markham (9 Week. Dig. 31), it was held that “ when the terms of a contract are in dispute, the value of the things about which the contract is made may be shown as bearing upon the question of probabilities.” See also, Kavanah v. Wilson (70 N. Y. 177; Jobes v. Parsons, 9 Week. Dig. 11).
    
      Royal S. Crane, for respondent.
   By the Court.—Freedman, J.

This action was brought to recover the sum of $500, wrongfully detained, and upon the trial the true issue was, whether plaintiff’s consent to a certain settlement between the parties was obtained by the defendant as her attorney by the false statement that, in addition to the sum of $500 paid to Valentine, which was conceded to have been paid, the further sum of $500 had to be paid to Jackson as the attorney of Swift, and that this left only §500 for defendant’s services and disbursements, or whether it was obtained upon the understanding that the defendant might retain $1,000 for his services and disbursements. Upon this issue there was a sharp conflict of testimony, and the jury had a right to look at surrounding circumstances inclusive of probabilities. The extent- of the services rendered and of the disbursements incurred by the defendant for the plaintiff was a fact which had a material bearing upon the question of probabilities, and the jury should have been instructed, as defendant requested, that they might consider the value of such services and the amount of such disbursements in determining whether the defendant consented to accept $500 in full for his services and disbursements as claimed by the plaintiff. They should also have been instructed, as defendant requested, that if they found that the amount agreed to be paid for such services and disbursements was $1,000 instead of $500, the defendant was entitled to a verdict. In refusing these requests and submitting the case to the jury upon ,the theory that the main point was whether or not there had been in point of fact a payment of $500 to Jackson as the attorney of Swift, the learned judge who presided at the trial erred.

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

Sedgwick, J., concurred.  