
    Ira G. Darrin, Respondent, v. George E. Clay, Appellant.
    
      Attorney and client — services —■ value — evidence.
    
    Appeal b)r the defendant, George E. Clay, from a judgment of the County Court of Queens county in favor of the plaintiff, entered in the office of the clerk of said county on the 2d day of June, 1910, upon the verdict of a jury, and also from an order bearing date the 1st day of July, 1910, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.
   Thomas, J.:

The evidence does not establish an agreement on the part of the defendant to pay the plaintiff forty per cent of the amount collected on the foreclosure. Although the defendant did not except to the submission of that issue to the jury, as there must be a new trial for error in the reception of evidence, it is considered that, even if the evidence justified a finding that such contract was made, it included compensation for services rendered in the action to restrain the foreclosure, for which plaintiff has made a demand, allowed by the jury, for the additional sum of §500. The plaintiff could not foreclose the mortgage with his proceeding blocked by the injunction suit, and to earn his alleged agreed compensation of forty per cent he was burdened with the necessity of removing the impediment. As such action was the only remedy for defeating the foreclosure, its resistance by plaintiff would be necessarily involved in any undertaking to foreclose the mortgage. Upon the issue of the value of his services, there was reversible error in the admission of evidence tending to show the profit the defendant derived from the enterprise of which the mortgage was a part. The action did not conveniently permit an examination of all the matters involved in ascertaining the defendant’s profit, nor did it concern the value of the plaintiff’s services whether the purchase by defendant of several mortgages, some not involved in the foreclosure, resulted favorably or otherwise. The plaintiff, by the simple remedy of foreclosure by advertisement and by defeating the action to restrain it, collected @3,388.95, and has recovered on the basis of compensation therefor in the net sum of about §1,838, which is something more than fifty per centum of the amount collected for the client, who also met some of the disbursements. While the service rendered by the plaintiff did involve much labor aside from that of qualifying himself for conducting the proceeding, inasmuch as the mortgage was ancient and its history somewhat obscure, the amount recovered is relatively so large that there should be ample legal evidence to sustain it, and for the errors noticed the judgment and order should be reversed and a new trial granted, costs to abide the event.— Jenks, P. J., Hirschberg, Carr and Rich, JJ., concurred. Judgment and order of the County Court of Queens county reversed and new trial ordered, costs to abide the event.  