People v. New York Building-Loan Banking Co.

Per Curiam:

The conclusion at which we have arrived renders it unnecessary to pass upon the contention raised by the appellants that the agreement is invalid, having been made by the first vice-president and secretary without authority, because even though it be assumed that a valid contract were made with the claimant, by which he was to receive $100 a day for services to be thereafter rendered to the corporation, we are of the opinion that the evidence does not sustain the finding that he did render under such contract 250 days’ service.

It nowhere appears what service was, in fact, rendered, except in the most general way, other than that he went, to Albany several times and had interviews with the Attorney-General of the State with reference to proceedings which had been or were about to be taken to place the corporation in the hands of a receiver. What . took place at these interviews or what was accomplished by them does not appear. • He never represented the corporation as its attorney in any litigation ; never tried any cases for it, nor did he ever appear in court or prepare a paper for it. All that he did, according to his own testimony, was to go to Albany and consult with the Attorney-General-^-and he had no definite recollection as to when these trips were taken because he kept no register — and give general advice to the officers of the corporation.

The claim is an extraordinary one, and especially so in view of the slight evidence given to sustain it, the financial condition of the corporation, at the time the claimant was retained, and the other' attorneys which it then had in its employ. Before a claim for 250 days’ service, rendered between Hovember 5,. 1902, and September 12,1903, at $100 a day can be allowed against an insolvent corporation, evidence highly satisfactory and most convincing must be. presented that the services were, in fact, actually rendered.

Here all that appears is that -the claimant went to Albany several times; that he was always at the corporation’s disposal; that he went to the office of the corporation “ almost dailythat between the date of the retainer and the time when the corporation went into the hands of a receiver, “ each and every day, excluding Sundays,” he acted under his retainer as legal adviser, to the corporation and was consulted daily by the first vice-president “ in a general way about the affairs of the Company, including the reference.”

The'establishment Of these facts is not only not convincing or satisfactory, but is insufficient to sustain a finding that the services were, in fact, rendered. '

The judgment appealed from, therefore, must he reversed, the referee discharged, and a new trial ordered before another referee, with costs to appellants to abide event.

Present — O’Brien, P. J., Patterson, McLaughlin, Laughlin and Houghton, JJ.

Judgment reversed and new trial ordered before another referee; with costs to appellants to abide event.