
    James A. Allen, Appellant, v. Daniel Flynn, Respondent.
    (Supreme Court, Appellate Term,
    December, 1906.)
    Municipal Courts — Review — Decision — Increasing recovery.
    Where, in an action in the Municipal Court of the city of New York by an attorney and counselor at law for services performed and expenses paid in effecting the incorporation of a construction company, upon defendant’s employment, the defense was that by the terms of his employment his claim was not to be paid until the company was formed and that it never did any business, it is error for the "court, after having determined the issue in plaintiff’s favor, to award him a sum less than the sum proved to have been the agreed amount of his compensation and the amount of his disbursements; and the Appellate Term will modify such judgment by increasing the recovery to the amount established by the proof.
    Appeal by the plaintiff from a judgment, rendered in his favor in the Municipal Court of the city of New York, eighth district, borough of Manhattan.
    Willard S. Allen, for appellant.
    Despondent filing no brief.
   Gildersleeve, J.

The plaintiff -appeals from a judgment rendered in his favor. The plaintiff is an attorney and eounselor at law and testified that he was employed by the defendant to prepare the articles of incorporation for a corporation to be known as the Flynn Contracting and Construction Company of which the defendant was to own a. large number of shares: that he prepared the articles; that they were executed by the incorporators' and that the defendant then asked his price for such services and was informed that it would be $250; that the defendant then asked plaintiff to advance sufficient money to pay the necessary fees for filing the papers which was done by plaintiff and which amounted to the sum of $88.26 for both of which amounts the defendant promised to send his check the next day. Later, and on February 1, 1906, the plaintiff mailed his bill for said amounts to the defendant, which he retained and made no objection thereto down to the time of the trial in June. In this statement the plaintiff was corroborated by one witness. Upon the trial the defendant was the only witness sworn in his own behalf and his contention was that the plaintiff was to be one of the incorporators, and that his claim for services and disbursements was not to be paid until the company was formed, and that said company never did any business. The trial justice evidently believed the plaintiff’s version, but gave him a judgment for the sum of $138.26 only. There is no foundation in the evidence for such a judgment. There is no dispute but that the plaintiff’s services were agreed upon at the sum of $250, nor that the disbursements were $38.26; and the court below, having found in favor of the plaintiff upon a disputed question of fact, should have rendered judgment for the proven amount of plaintiff’s claim, viz., $288.26 damages and $6.24 interest, malting in all the sum of $294.50. See Kemp v. Tonnele Co., 51 Misc. Rep. 49.

Judgment increased to the sum of $294.50, with appropriate costs in the court below and, as increased, affirmed, with costs.

Fitzgerald and Davis, JJ., concur.

. Judgment increased to $294.50 with appropriate costs in court below and, as increased, affirmed, with costs,  