
    State Mutual Life Assurance Company of America, Respondent, v. Dutch Inns of America, Inc., Appellant.
   Judgment, Supreme Court, New York County, entered August 3, 1973, modified on the law to strike therefrom the award of damages to plaintiff of $37,337.49 and to remand for a hearing on quantum meruit to determine the amount of counsel fees properly to be charged to the defendant-appellant, and as modified, affirmed, without costs and without disbursements. Plaintiff and defendant entered into an arrangement in writing for the purpose of determining whether a financial transaction would be entered into and moneys loaned to the defendant by the plaintiff, which transaction was never consummated. However, the writing contained the following undertaking by the defendant: “ Whether or not this financing is consummated, you agree to pay all fees of our Special Counsel, and any other expenses which might arise.” While the liability of the defendant is clear, the reasonableness of the counsel fees and disbursements paid by the plaintiff to the two firms of attorneys who represented it as special counsel can only be determined after a hearing. Concur—Nunez, J. P., Kupferman, Steuer,

Tilzer and Lane, JJ.  