
    William Woodbury, Resp’t, v. Ansel F. Conger, App’lt.
    
      (Supreme Court, General Term,, Fifth Department,
    
    
      Filed October 23, 1891.)
    
    Attorneys—Burden of proof.
    In an action for services rendered by an attorney & prima facie case is made out on showing the rendition of services and their value. The plaintiff is not called upon as a part of his case to negative a defense that the services were to be gratuitous unless a recovery was had, but the burden of proving such defense rests upon the defendant.
    Appeal from a judgment entered in Erie county, October 8, 1889, on the verdict of a jury rendered at the circuit.
    
      Adelbert Moot, for app’lt; William Woodbury, resp’t in person.
   Macomber, J.

This action was brought to recover the value of the plaintiff’s services as an attorney and counselor at law in certain litigations which he had conducted for the defendant That the plaintiff gave evidence showing the employment and the value of his services to be at least the amount of the verdict admits of no doubt, and the fact is conceded by the learned counsel for the appellant.

Certain exceptions, however, were taken at the trial upon which reliance is placed for a reversal of the judgment. The first exception argued by counsel is the ruling of the court permitting the witness Wadsworth to testify, under objection and exception, concerning the connection of Joseph M. Congdon, at that time the defendant’s attorney, with the case. This exception, however, must go for naught, because the witness was not permitted to give evidence of what actually took place between him and Mr. Cong-don, and for the further reason that, so far as the witness did give testimony, the defendant’s counsel conceded its competency by admitting that Mr. Congdon came to Buffalo, and saw Mr. Wads-worth, and had an interview with him.

The only other exception requiring notice is that relating to the burden of proof. The action, as has already been stated, was for the recovery of compensation as attorney and counselor at law under a quantum, meruit. Having proved the rendition of the services, and the value thereof, a presumption of law arose that the defendant had contracted to pay the amount thereof to the plaintiff. The defense, however, is that the services in the litigation were to be gratuitous unless a recovery was had and compensation obtained from the other side. The court at the trial consistently held that the plaintiff had made out a prima facie case on showing the rendition of the services and the value thereof, and held that the defense, that the services were to be gratuitous, or without compensation in any event from the defendant, was an affirmative defense, which must be established by evidence adduced in support of it. It is clear that it was no part of the duty of the plaintiff at the outset to negative the proposition that the services were not to be paid for. The presumption of law, on the contrary, is that they were to be paid for. The plaintiff was called upon to prove no more than his own affirmative allegations, namely, the rendering of the services at the request or knowledge of the defendant, and the value thereof. He was not required to give evidence of the negative character mentioned, for the reason that it was no part of his case to exclude. the independent and affirmative defense. The plaintiff has, by a fair preponderance of the evidence, established his side of the case; consequently the verdict of the jury was correct, and should be affirmed.

Judgment affirmed.

Dwight, P. J., and Lewis, J., concur.  