
    ALPHONS CUSTODIS CHIMNEY CONST. CO. v. BROAKER
    (Supreme Court, Appellate Term.
    June 5, 1908.)
    1. Contracts—Performance—Willingness to Perform—Admissibility of Evidence.
    In an action to recover a sum paid to defendant for services rendered and to be rendered in testifying as an expert accountant ,in a certain suit, questions asked defendant as to his readiness to attend the trial as a witness under the retainer were improperly excluded.
    
      '2. Same—Performance.
    Where plaintiff paid defendant a sum to testify as an expert accountant in a certain suit, and, though the trial in "which defendant was to testify had not been held when this action was begun, defendant had conferred with plaintiff’s counsel in the preparation of its pleadings in the suit, and had kept in touch with the situation, and was prepared to testify in plaintiff’s behalf at the trial, he was entitled to some compensation, if not to all the retainer paid, unless fraud or utter failure to perform were shown.
    Appeal from Municipal Court, Borough of Manhattan, First District.
    Action by the Alphons Custodis Chimney Construction Company against Frank Breaker. From a judgment for plaintiff, defendant appeals.
    Reversed, and new trial ordered.
    Argued before GILDERSLFEVE, P. J., and DAYTON and GERARD, JJ.
    Friend & Friend, for appellant.
    Jacob Fromme, for respondent.
   PER CURIAM.

The action was to recover $300 paid by plaintiff to defendant for services to be rendered by the latter immediately after said payment, but which were not rendered, although requested. Demand for payment was made on January 15, 1908. The answer alleged that the $300 received by defendant was for a retaining fee ■on account of services theretofore and to be rendered as a certified public accountant and as an expert witness in an action brought by the American Audit Company against the plaintiff, that services were rendered, and that' defendant was still ready and willing to perform the services for which he was engaged.

The action brought by the audit company was for $1,271.45, balance of $4,621.42. The receipt given by defendant to plaintiff was as follows: “To retainer in suit brought by American Audit Co., $300.—Aug. 1, 1907.” The action of the audit company against plaintiff had not been determined at the time of this trial. Plaintiff’s testimony was to the effect that several conferences were had with ■defendant concerning the claim of the audit company and that $300 was to cover this preliminary work, and in case the audit company did go into court he would get $25 a day while in court. Defendant testified that the work done by the audit company was not correct; that he also conferred with plaintiff’s counsel in the preparation of its answer to the audit company’s claim. His testimony showed that he sought to keep in touch with the situation and agreed to show that the accounting prepared by the audit company was not properly prepared. Plaintiff’s attorney testified that he called on defendant with reference to preparing for trial.

Several questions were asked of the defendant as to his readiness to attend as a witness for the plaintiff in the audit company suit. All these questions were excluded, and defendant excepted. This was ■error. Undeniably a contract was entered into. Unquestionably the ■defendant was retained and performed some services. If plaintiff ■wished to rescind, the defendant was entitled to some compensation, if not to all his retainer, unless fraud or utter failure to perform were shown.

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