
    The American Short Line Railroad Association, Plaintiff, v. Fonda, Johnstown and Gloversville Railroad Company, Defendant.
    Third Department,
    November 20, 1929.
    
      Nash Rochwood [Ben B. Cain of counsel], for the plaintiff.
    
      Wesley H. Maider, for the defendant. j
    
   Hill, J.

This controversy is submitted upon an agreed statement of facts. Plaintiff contracted to examine the Federal income tax payments - of defendant and its related industries, from and including 1920 to 1925, and if overpayments were found to have been made, to seek a refund. Compensation was contingent upon a refund being obtained. The contract provided that plaintiff was to receive To cover all expenses and service of every kind and character a sum equivalent to forty per cent of such amount or amounts as may be established * * * and refunded by the Federal Government.” Overpayments amounting to $65,493.57 were established. This amount, with $17,970.16 interest, was refunded. The percentage of the principal has been paid. This controversy arises because plaintiff seeks to recover forty per cent of the interest. It is stipulated that if judgment is rendered in favor of the plaintiff, it shall be for $7,188.06, with interest thereon from May 28, 1928, without costs.

The compensation was to be dependent on and measured by the financial benefit received by defendant through plaintiff’s efforts. If no overpayments had been found and established, there would have been no interest. By statute, interest was included in the refund. (See Revenue Act of 1926 [44 U. S. Stat. at Large, 119], § 1116.) It was a part of the benefit received, and should be considered in ascertaining the fee. (Matter of Bassford v. Johnson, 172 N. Y. 488; Matter of Hawke, 148 App. Div. 326; affd., 204 N. Y. 671.)

Judgment should be rendered in favor of the plaintiff for the sum of $7,188.06, with interest from May 28, 1928, without costs.

Van Kirk, P. J., Davis, Whitmyer and Hasbrouck, JJ., concur.

Judgment rendered in favor of the plaintiff for the sum of $7,188.06, with interest from May 28, 1928, without costs.  