#### In the Matter of the Final Accounting of William Simpson, Deceased.

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

*Filed May 24, 1889.)*

1. Evidence—When incompetent under Code Civ. Pro., § 829—Attorney AND CLIENT.

On a reference to determine the value of professional services rendered by an attorney to certain deceased executors, evidence, on the part of the attorney, was permitted of frequent consultations had with the executors. After the death of the executor, their executor paid the attorney a certain sum, which was afterwards reduced. The right to retain the difference between the amount paid and as reduced, depended upon proof of the consultations with the deceased executors. *Field,*that as the testimony concerning the valuation of the time and services devoted to the consultations related directly to personal transactions, and the witness was interested in maintaining the objection taken by the appellants that they were not liable to repay any part of the sum paid by them to the attorney, it was incompetent under Code Civil Procedure, section 829.

2. Same—Books of account.

Where it does not appear by the authentication of books of account offered in evidence, that the entries therein have been correctly made, and they are not attested by any person who, at the time, knew that they truthfully recorded the transactions to which they relate, they are inadmissible.

3. Same—Competency oe.

To resist the allowance claimed on behalf of the attorney, evidence was S'ven showing that the deceased executor had consulted with other lawyers. *'eld,*that, it not being claimed or shown that the specific services rendered by the attorney were in fact performed by other persons, the evidence was inadmissible.

Appeal by William Simpson, Jr., and John V. Simpson, Jr., executors of the last will of William Simpson, deceased, from an order confirming a referee’s report, and denying a motion to set it aside.

*Robert G. Ingersoll,*for app’lt; *Paul Fuller*and *Fettretch, Silhman & Seybel,*for resp’t.

Daniels, J.

This case was previously before the general term on appeal, when it was referred back to the referee, to take proof of the value of the services rendered by D. Noble Rowan, for Smith Barker and William Simpson, as executors of the estate of Walter Stevenson, deceased. After the decease of the surviving executor, William Simpson, the surviving executor of his estate, paid to Rowan the sum of $2,050. This payment was made without proof of the indebtedness of the estate to this extent to Rowan, and the disallowance of the payment and the further reference was ordered to obtain evidence of the value of the services rendered by Rowan. On the hearing under this reference the referee reduced the amount to which Rowan was entitled to the sum of $1,169.89, leaving a balance, after *686deducting this and another item, to be restored to the trustee, who was appointed by the court to take charge of and administer tib^e estate, of the sum of $963.25, with interest from June 127th, 1879. The appellants excepted to this decision of the referee, and their exceptions were overruled, and his report was confirmed, which subjected them to the payment ofj this- sum of money.

In this amount ¡was the difference between the aggregate sum allowed to Rowan, and the $2,050, which had been paid to him by the appellants. The right to retain this difference depended upon proof of consultations with the executors of the ¡estate of Stevenson not included in, or compensated for, j by either of the items allowed by the referee. Those allowances were for particular services rendered by Rowaji to the estate. In addition to these specific services, evidence was given before the referee of frequent consultations by the executors, and by William Simpson, as survivor, for a successive series of years. And a valuation was placed upon the time and attention devoted . to these consultations by the claimant Rowan, and also by his brother. |

The testimony o¡f D. Noble Rowan concerning the valuation of his services, and time devoted to the business of the estate in thesfe consultations, was objected to on the ground that he was incompetent to give it under section b29 of the Code of Civil Procedure. And this objection though overruled by the referee, was probably well taken, for the reason that he was interested in the claim of the executors of the estate of William Simpson, to retain the amount which they had paid to D. Noble Rowan.

This testimony Concerning the valuation of the time and services devoted to these consultations, which were with the deceased executors, related directly to personal transactions, and this witness was interested in maintaining the objection taken by the appellants, that they were not liable to repay any part df the $2,050, for the reason that D. Noble Rowan was entitled to receive it all as a compensation for his services. If the appellants fail in sustaining this position then they would be liable to pay over the balance of amount of the $2,050, to the trustee of the estate, who would be entitled to call ppon this witness for reimbursement to that extent. That rendered him an incompetent witness concerning the valuation placed upon this time and these services, while he would not be so as to other services performed in specific bases, where the personal transaction included no more thqn the retainer, or employment, of himself by one or both of the executors.

The referee accordingly was right in the end in rejecting the testimony of D. Noble Rowan as to the value of his time and services devoted to and employed in and about these consultation^. But there was other evidence on the hearing tending to establish the fact-that these consultations *687took place; that they were very numerous and extended over a long period of time, and that the time and services of D. Noble Eowan devoted to the business of the estate in this manner were worth more than the difference between the sum allowed to him and this sum of $2,050.

To resist the allowance claimed on behalf of D. Noble Eowan, for compensation for these consultations, evidence was given showing that William Simpson, as executor of the estate of Walter Stevenson, had also consulted with the firm of Lockwood & Crosby, concerning the business of the estate. This evidence was objected to, and so far as it was first given, a motion was made to strike it out. It was, however received by the referee, and further testimony was given by books kept in the office of Lockwood & Crosby, from March, 1875, to October, 1878, containing entries of calls made on the firm of Lockwood & Crosby, by this executor. The entries in these books were stated to have been made by the witness, Silkman, or by persons who were clerks under him, and on that evidence the books, so far as they recorded calls and transactions with Mr. Simpson, were allowed by the referee to be read. This evidence was inadmissible for two reasons. It did not appear by the authentication of the books, that the entries had been correctly made in them, or that they were attested by any person who at the time knew that they truthfully recorded the transactions to which they related. This would only be done by calling, as witnesses, the other persons besides Silkman, in whose handwriting the entries in the books had been made, or accounting for their absence in such a manner as to allow their entries to be read. But if the books had been sustained by evidence as to the correctness of their entries, they still related to other and different transactions between other parties, than those consultations upon which the appellants relied, to justify the payment made by them of this sum of $2,050. Proving what took place in the office of Lockwood & Crosby, had no tendency whatever to disprove the actual occurrences of the consultations which are stated to have taken place between D. Noble Eowan and the surviving executor of Stevenson’s estate. And the evidence should not have been received as it was by the referee for this, or any other object. If specific services had been claimed in behalf of D. Noble Eowan, which were, in fact, performed by other persons, proof of this fact would have been admissible, for that would have tended to disprove the rendition of his services. But the transactions, to which these books relate, were not shown to have been identical with either of the consultations for which the appellants claim that D. Noble Eowan was entitled to compensation.

This evidence, so erroneously received, may very well have prejudiced the right of the appellants to maintain the correctness of the payment which they made to D. Noble Eowan, amounting to this sum of $2,050.

It had no place legally in the investigation committed to *688the referee, and the order confirming the report and overruling the exceptions of the appellants was erroneous, and it should be reversed, with costs to abide the result of a further hearing to these appellants, and an order should be entered directing another reference, either to this, or another referee, tp take proof of and ascertain the right of the appellants to; pay this sum of money to the attorney, D. Noble Rowan.1

Order appealed 'from reversed, with costs to appellants to abide event, and :qew reference ordered.

Van Brunt, Oh. J., and Brady, J., concur.