#### John Schenck, Pl’ff and Resp’t, *v.*Mathew Marx, Def't and App’lt.

*(Supreme Court, General Term, Second Department,*

*Filed May 13, 1889.)*

Appeal—New trial—Judgment reduced—Proper disposition oe case.

Where it appears that the verdict was excessive, hut the weight of the evidence showed that in case of a new trial the plaintiff would he entitled to a verdict for a certain sum, hut less than the amount of the verdict, and where there were errors in the admission and rejection of testimony sufficient to warrant the granting of a new trial, the court ordered the judgment to he reduced to the amount for which a verdict would necessarily he rendered on a new trial.

*810Appeal by defendant from an order denying the motion to set aside the verdict, and for a. new trial.

This is an action by a client against his attorney to compel him to pay over funds that he had collected as his attorney. The defense was that the defendant had paid to the plaintiff the amount that he was entitled to under an agreement made between them in regard to the suit. It appears that the defendant had been employed to institute suit for the plaintiff against one John Ringler, and executed an agreement to pay the defendant thirty-five per cent of the amount collected, besides disbursements and costs. The suit, however, which defendant thereupon instituted was dismissed and another brought. In the new suit, Charles Benner was called in as counsel, and a new agreement was then executed, by which plaintiff was to pay the defendant as attorney, and Benner as counsel, thirty per cent. A verdict was subsequently obtained in this last suit against Ringler in favor of the plaintiff for $1,200; which sum, with interest and costs ¿mounting to $i,7l9, Marx, the defendant in the suit at bar, received, and paid the plaintiff $800, claiming that to be the amount coming to plaintiff on the verdict, deducting thirty-five per cent for his fee under the first agreement between them, and also claiming that the plaintiff, out of that, should pay Mr. Benner, as counsel, his fee.

It appears Marx did not inform the plaintiff of the amount he had actually received. The plaintiff afterwards became dissatisfied with the payment, tendered back the $800, and that not being accepted, he instituted this suit to compel defendant to pay the balances remaining in his hands. The jury found a verdict in favor of the plaintiff for $220.

*Mathew Marx*(8. *B. Noble,*of counsel), for appl’t in person; *Johnes, Willcox & Purdy (Henry G. Willeox,*of counsel), for resp’t.

Pratt, J.

It is plain enough that the object of this suit is to permit Benner to collect his share of fees from Marx under the second agreement, but it is difficult to see upon what theory the jury based their verdict.

It is clear the plaintiff understood he had agreed to give a portion of the recovery to his attorney and counsel, and equally clear he understood and was satisfied with the settlement, except possibly five per cent. Therefore in no event could he clgirn over sixty dollars, that being five per cent on the verdict of $1,200, and the weight of evidence seems to be in favor of such an amount.

There are some errors in the admission and rejection of testimony sufficient to warrant granting a new trial, but as a new trial must necessarily result in a verdict for at least sixty dollars, we think the case can be properly disposed of by reducing the judgment to that amount with interest since the date when the plaintiff received the $800, without costs to either party on this appeal.

All concur.