Kraus v. Weinblatt , 105 N.Y.S. 1125 ( 1907 )

FITZGERALD, J.

The complaint states a cause of action for money had and received, and the answer is a general denial. The amount claimed was $120. Upon the trial the defendant was permitted to amend the answer by_ setting up a tender of $56 before suit and a denial as to the balance of the claim. According to the testimony defendant was retained as an attorney by the' plaintiff to bring an action against two parties, and it was admitted by the defendant that he had collected under such retainer $118. There was a conflict of evidence as to how defendant was to be paid for his legal services to the plaintiff. Defendant claimed that it was agreed that he and plaintiff were to divide equally the amount of any recovery. There was no proof of a deposit with the clerk to support the averment of teuder, which according to the evidence plaintiff refused to accept. Sections 731, 732, Code Civ. Proc. The only disputed question of evidence was as to the terms of the agreement; the plaintiff denying the pro rata agreement which defendant claimed was entered into. But, accepting defendant’s version of the transaction as correct, plaintiff was entitled at least to a judgment foi- $56. There is no evidence in the case to support the finding of the learned court below, and the judgment against the plaintiff for costs must be reversed. Plaintiff having announced his willingness to abide bv the defendant’s version of the agreement, judgment for defendant is reversed, and judgment ordered for plaintiff for $56, with costs in this court and the court below. Judgment reversed, and judgment ordered for plaintiff for $56, with costs in this court and the court below. All concur.