
    John H. Carpenter, Plaintiff, v. Thomas F. Hammond et al., Defendants.
    (Supreme Court, New York Trial Term,
    July, 1910.)
    Implied contracts—Contracts implied in fact — Acceptance of benefit — Acquiescence in performance of services — Services of stenographer — Upon commission in lunacy.
    Insane persons — Inquisition — Costs and fees.
    A proceeding to have a person declared an incompetent is not a “ litigation ” in the ordinary sense of the term, and the alleged incompetent is not liable, in the absence of express contract, for the services of an unofficial stenographer in taking the testimony, except upon the theory of an implied contract'.
    An obligation on the part of the incompetent to pay for a copy of the stenographer’s minutes furnished to the commissioners may not be implied from his failure to protest or object to the services of the stenographer at the hearings, nor from the fact that he ordered and paid for a copy of the minutes for his own use.
    Where, in an action for the services rendered by the said stenographer, it does not appear that in rendering the services he relied upon anything said or done by the defendant or his attorney, or that the position of plaintiff in anywise was affected by any act of defendant or his attorney, the defendant, who could not have prevented the employment of a stenographer by the petitioner in the proceedings, is entitled to a verdict.
    Action upon contract
    
      P. S. Russell, for plaintiff.
    H. D. Becker, for defendants.
   Greenbaum, J.

As no express contract was made by or on behalf of defendant for the services of plaintiff’s assignor as unofficial stenographer in the proceedings instituted against defendant to have him declared an incompetent, a recovery by plaintiff may only be upheld in this case upon the theory of an implied contract. The defendant could not have prevented the employment of a stenographer by the petitioner in the proceedings instituted against him, and his acquiescence to the extent of incurring an obligation to pay for the copy of the stenographer’s minutes furnished to the commissioners may scarcely be inferred from the fact that he did not protest or object to the services of the stenographer at the hearings or that he ordered a copy of the minutes for his own use and paid for them. This is unlike the cases where the circumstances show that the services of a stenographer were expressly secured and accepted by the parties to an action or proceeding. Bottome v. Neeley, 124 App. Div. 600, 603; Bottome v. Alberst, 41 Misc. Rep. 665. The proceeding in which the stenographer in this case rendered his services was unlike an ordinary action or proceeding between parties, and is not to be regarded as a “ litigation in the ordinary sense of the term between parties.” Matter of Hammond, 125 App. Div. 865. The Code (§ 2333) provides that the petitioner in proceedings looking to the appointment of a committee of an alleged incompetent “ must pay the compensation of the commissioners, sheriff and jurors.” It does not appear that the plaintiff’s assignor in rendering his services relied upon •anything said or done by defendant or his attorney, or that his position in anywise was affected by any act of the defendant or his attorney. Where the acceptance of the service “ has in no way influenced the conduct of the other party with reference to the work itself a contract will not be implied.” 15 Am. & Eng. Ency. of Law, 1082. A verdict must be directed in favor of the defendants.

Verdict for defendants.  