
    Theodore E. Bramble, Resp't, v. Elston Hunt et al., App'lts.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed April 13, 1893.)
    
    1. Evidence—Opinion.
    In an action by an attorney for professional services another attorney was called as a witness for plaintiff, and asked: “From what you know of the services of plaintiff to the defendants in this litigation, what you know of his standing as a lawyer, the responsibility of the work, and from your personal knowledge of all the facts in the case, assuming plaintiff did prepare the trial brief, what, in your judgment, were the plaintiff’s services to these defendants worth? Held, incompetent.
    2. Same—Habmdess ebbo.b.
    Where an incompetent question is allowed, but no harm results, a new trial will not bo granted.
    Appeal by Elston Hunt, William R. Hunt, and Arthur H. Hunt, defendants, from a judgment entered in Monroe county, September 14, 1891, on tlie report of a referee in an action by the plaintiff to recover for professional services, as an attorney and counsellor at law.
    
      Edwin Hicks, for app'lts; George F. Slocum, for resp't.
   Macomber, J.

The plaintiff, between the years 1880 and 1887, rendered professional services as an attorney and counsellor at law to the defendants, who were co-partners in business at Honeoye Falls, H. Y., under the firm name of Hunt Bros., and who were engaged, in the manufacture of woolen goods in their mills, situated on the outlet of Hemlock, Ganadice and Honeoye lakes. These services to the defendants grew out of the fact that the defendants, with many other mill owners, were interested and were parties to proceedings instituted by the city of Rochester to acquire the right to draw water from Hemlock and Ganadice lakes for public use. The defendants were not, consequently, the sole parties interested in these proceedings. Hor has the learned referee attempted to hold them for any more than a fair proportionate share of the expense for the services of the plaintiff. Ho question, however, is made in regard to the liability of other persons to counsel. Indeed, we do not see how any question of liability of the defendants, jointly with other millers, could be raisd6 because a non-joinder of their associates was not set up in their answer; and not having been pleaded is unavailable to them under §§ 488, 498 and 499 of the Code of Civ. Pro.

An examination of the testimony cbnvinces us that the allowance made by the referee to the plaintiff, which was the sum of $250.00, was not excessive, but was rather a conservative estimate of the value of the plaintiff’s actual services to these defendants.

But a somewhat embarrassing question is presented in respect to the mode by which this conclusion was reached by the referee. He says in his opinion, that he has adopted as the proper measure of damages in this case the sum mentioned by the witness, Beckley, who was called in behalf of the plaintiff. Mr. Becldey was asked : “ Q. Mr. Becldey, from what you know of the services of Mr. Bramble to the defendants, Hunt Bros., in this litigation,what you know of his standing as a lawyer, the responsibility of the work and from your personal knowledge of all the facts in the case, and assuming Mi; Bramble did prepare the trial brief of the evidence in all these cases, that the Hunt Bros, claim, in round numbers, $19,500, and that they were awarded $8,500, what, in your judgment, were the plaintiff’s services to these defendants worth?”

This was objected to as incompetent, and upon the ground that it involved the services performed in nineteen other cases besides that of the defendants, and that the witness was not qualified to answer the question. The objection was overruled, and the defendant excepted. His answer was: “I should put the value of the services, in answer to the question put to me, as about $250, and if Mr. Hunt’s case had been tried alone, I should put a much greater value on them.”

The referee says in his opinion: “ It seems to me, therefore, that I may, with propriety, rely upon the judgment of Mr. Beckley, who was engaged in the proceedings on the opposite side throughout, and whose opportunities for knowing the value of the services are better than those of one whose only knowledge is received from the statement of witnesses as to what the services were.”*

That this question put to Mr. Beckley was incompetent hardly admits of doubt under the decision of Carpenter v. Blake, 2 Lans., 206, and 77 N. Y., 180, which follows the well-established rule that a hypothetical question should be throughout what its name imports, and not a question calling for the personal judgment of the witness upon facts known to him outside of the question and outside of the testimony.

This would ordinarily lead to a reversal of the judgment and to a new trial. But we find that Mr. Beckley’s estimate of the value of the plaintiff’s services was the smallest of the three witnesses who were called and gave testimony upon that subject. The'witness Bzziggs estimated them to be worth $850, and the witness Humphrey, $300. It is true that the referee was not bound either by the judgment of the witness Beckley, or of that of the other two witnesses. But he being the lowest in his estimate of the value of the services, and such estimate being, in our judgment, manifestly low, under the facts, we hardly deem it necessary to grant a new trial upon that ground. The opinion of the referee cannot be resorted to for the purpose of reversing his findings. Such findings show, not Mr. Beckley’s estimate, but the referee’s judgment, from the whole case, of the value of the plaintiff’s services.

But it is urged by the learned counsel for the appellants that the hypothetical question put to the witnesses, Briggs and Humphrey, was also objectionable. It was,-it is true, objected to as incompetent; but, on examination, the question, which is too long to quote in this opinion, shows that it did not contain the vice ascribed to the question put to the witness Beckley, in that it did not call upon these witnesses to take into the account their own personal knowledge of the extent and value of the services as actually rendered.

But neither was the learned referee, nor is this court, confined in its judgment to a statement in figures of the value of professional services rendered by a lawyer. Being matters peculiarly within the knowledge of courts, when the facts are disclosed, a mere opinion of a witness, though entitled often to much respect, is not by any means controlling. We think, taking all of the circumstances together, that while the question put to Mr. Beckley was incompetent, no harm has resulted to the defendants by reason of the error, and that consequently we are not compelled to reverse the judgment upon that ground.

Judgment appealed from affirmed.

Dwight, P. J.,. Lewis and Haight, JJ., concur.  