
    Allan Lee Smidt, Appellant, v. Leo C. Dessar, Respondent.
    (New York Common Pleas—Additional General Term,
    June, 1895.)
    An agreement between attorneys by which one is to try a series of cases at a specified sum per case, the other guaranteeing two cases per week, while a guaranty to furnish the specified number of cases binds the latter only to pay for the cases actually tried.
    Such an agreement is not ambiguous and parol testimony as to its terms is inadmissible.
    Appeal from a judgment of the District Court in the city of New York for the eleventh judicial district.
    Action on contract for legal services.
    
      William 0. Reddy, for appellant.
    
      Rurr & Re Raey, for respondent.
   Bookstaver, J.

The agreement sued upon is as follows:

It is agreed between Leo C. Dessar and Allan Lee Smidt that Smidt is to commence April Ith, 1892, the trial of cases before commissioners at a fee of $40.00 per case ($25.00 cash and $15.00 on collection). Dessar guaranteeing Smidt two (2) cases per week. Either party may terminate this agreement by one week’s notice to the other.

“ E. Y., April 6th, 1892.

“ (Signed) Leo C. Dessar.”

The plaintiffs claim rests upon the contention that under this agreement the defendant guaranteed him two cases a week; that he worked ten weeks before the commission, and during that time tried seventeen cases, no more being given him, and he seeks to recover $120 for the three cases so withheld.

Defendant contends that he had a calendar of fifty cases to be tried. That he turned this over to plaintiff, and that plaintiff had entire charge of it, and in the ten weeks tried them as rapidly as he could, and tried all he could before the commission adjourned, in number seventeen, for which he has been paid.

The agreement was correctly interpreted by the justice. Dnder it the defendant guaranteed to plaintiff two cases a week, but he only agreed to pay him for the cases he actually tried, and the whole matter resolves itself into a question of fact as to whether defendant furnished the cases according to the guaranty. This question has been decided upon a conflict of testimony in favor of the defendant, and the justice’s decision thereon will not be disturbed in the absence of inadvertence, mistake, prejudice or passion on his part. Mead v. Pope, 7 Misc. Rep. 181.

The plaintiff challenges the decision upon the further ground that the justice erred in excluding testimony as to the terms of the contract. There is no ambiguity in the contract, and its construction was for the court, whose interpretation, as we have said before, we think was correct, and the exclusion of this testimony was not error. Gerard v. Cowperthwait, 2 Misc. Rep. 371; 50 N. Y. St. Repr. 592; Campbell v. Jimenes, 7 Misc. Rep. 77; 57 N. Y. St. Repr. 480.

Eor these reasons the judgment must be affirmed, with costs.

Bischoff, J., concurs.

Judgment affirmed, with costs.  