Kenyon v. Barber , 85 N.Y.S. 1135 ( 1903 )

PER CURIAM.

This is an appeal by the plaintiff. He is a stenographer, and sues to recover for his services on a reference. His story is that he was called in by the referee, and brought to the room where there was a number of counsel, to make his own terms. At that time some one of the counsel talked to him about terms, etc., and they said they “would get along with one copy.” He did the work, tried to collect his bill from a fund which was inadequate, and now brings an omnibus suit. There are several briefs which should be read, inasmuch as the respondents rely upon different grounds. As to some of them, the judgment is plainly right on every ground. As to others, it is not so clearly right; but we think it must be sustained, as we think it is really a question of fact. The theory of the plaintiff is that where some one of the divers attorneys carried on the negotiations, and the others sat by, and the reference thereafter proceeded, all are liable. But some of the defendants, or their attorneys, were not present, or it is not proved that they were; 'and there are so many different ones that it is hard to differentiate and to ascertain from the facts who carried on the negotiations, or who were present. So far as the benefit is concerned, non constat but those not present at the first session (if there were such a conversation) supposed that payment was to come from the fund. It is not such a case as would be presented if there were one defendant whose counsel had made a request and received a benefit. We do not think that the judgment should be reversed on the facts, and so advise affirmance, with costs.