#### Oscar Bluemner, Appellant, *v.*Michael J. Garvin, Respondent.

First Department,

February 21, 1908.

Practice—amendment of complaint after reversal of judgment for plaintiff.

. Where a plaintiff suing under a complaint alleging an express agreement to “fairly share with plaintiff” commissions received as architect, has testified that a fair share of the commissions would be one-half, and a judgment in his favor has been reversed Upon the ground that the express contract was void ■ for indefiniteness, the plaintiff will not be allowed to amend so as to set out an express agreement to pay one-half of the commissions received.

But although the plaintiff in the original complaint alleged a claim on *quantum meruit,*which he retains in the proposed amended complaint, he should be allowed to amend by setting out an additional count on *quantum meruit*claiming an increased amoiint by reason of items of service hot stated in the original complaint. Although he cannot recover under both counts for *quantum meruit,*that is a matter for the trial court when the evidence is all before it.

*492Appeal by the plaintiff, Oscar Bluemner, from an order of the Supreme Court, made at the New York Special Term and entered in the office .of the clerk of the county of New York on the 20th day of January, 1908, denying the plaintiff’s motion for leave to serve an amended complaint herein.'

*Isaac E. Miller,*for the appellant. .

*John P, Everett,*for the respondent.

Lattghlin, J.:

The original complaint contains two counts,, one to recover. $20,000 on an express agreement by which it.is alleged the defendant agreed to associate'the plaintiff with him as architect for the Bronx borough court house, and to “fairly, share with plaintiff the commissions'received by defendant on account of”' the latter’s contract with the city of New York as architect for said building, and another to recover $10,000 for the plaintiff’s services as an architect “ in forming,devising and drawing sketches and plans for the erection ” of said court house, but the whole amount demanded was $20,000. Upon the trial the plaintiff confined his evidence to the first count. He showed that the defendant' received $40,000 from the city for his services as architect in the premises and claimed that a fair share thereof, which was the contract qs testified to by him, was one-half of that amount. He recovered on that theory, but on appeal this court .reversed the judgment and granted a new trial upon the ground that the express contract was void for indefiniteness. (120 App. Div. 29.) In the proposed amended complaint the first count is amended by alleging that the .agreement was to pay the plaintiff one-half the amount received by the defendant from the city. We are of opinion that the court properly denied the motion in so far as it involved an amendment of the first count. The plaintiff, having alleged that the agreement was to pay *a fair share*and having so testified, should hot now be permitted to amend in order to enable him to change his testimony and recover on a definite contract. The facts shown by the moving papers, however, indicate that the plaintiff rendered valuable services to the defendant, ■ not merely in preparing the sketch, design and drawings, but also in originating them and with respect *493to securing the contract for which he could not recover under the second count. The proposed amended complaint incorporates the *quantum*meruit• count of the Original complaint as a third count and contains as a second count allegations to the effect that the plaintiff and defendant entered into an agreement by which the former undertook and agreed to design and' prepare plans which should meet the requirements of and be approved by the municipal art commission of the-city of Hew York, it being understood that the plaintiff’s compensation was to depend Upon such approval; and he performed the contract and secured the approval of the art commission which enabled the defendant to obtain the contract from the city whereby he received from the city the sum of $40,000, and that the services of the plaintiff were reasonably worth the sum of $20,000. It doubtless includes the services for which, a recovery was sought in .the *quantum meruit*count of the original complaint, but as has been seen it embraces other items of services and elements of damages. A recovery may not be had under both counts, but that is a matter to be taken, care of on the trial when the evidence is all before the court. We. are of opinion, therefore, that plaintiff should have been permitted to set up this cause.of action.

It follows, therefore, that .'the order should be reversed, and motion to serve an amended complaint granted,' the proposed amended complaint, however,' not to stand as served, but plaintiff to be at liberty within ten days to serve an amended complaint incorporating the first count as in the original complaint, and the second and third counts as in the proposed amended complaint, without costs of the appeal and on condition that plaintiff pay all costs'of the action to date and ten dollars costs of the motion.

. Patterson, P. J., Ingraham, Clarke and Houghton, JJ.., concurred.

Order reversed" and motion granted to the extent .and on the conditions stated in opinion. Settle order 'on notice.