#### Charles Stumpf, Appellant, *v.*Nettie Cohen, Respondent.

(Supreme Court, Appellate Term, First Department,

November, 1912.)

Attorney and client — evidence as to-rendition of services — assignee of claim — action to recover on claim for disbursements.

' Where pursuant to defendant’s authority her attorneys in this state, employed to bring a suit in equity in the state of Virginia, engaged attorneys in that state upon their client’s promise to pay *159the fees of such attorneys who brought the suit, and the evidence in an action by the assignee of their claim, as to the rendition of services by them and the value thereof as established by expert testimony is uncontradicted, the plaintiff is entitled to recover in the absence of the introduction of any evidence on the part of defendant, and though the testimony as to the value of the services was properly left to the jury a verdict in favor of defendant, which was not only against the weight of evidence but was unsupported by any evidence, will be reversed and a new trial granted.

In an action to recover on a claim for disbursements alleged to have been made on defendant’s behalf by her attorneys in this state, the admission of evidence merely showing payments aggregating in amount less than the aggregate credits given defendant on the bill rendered to her for such disbursements, over the objection and exception of plaintiff’s counsel, is reversible error, the defense of payment not having been pleaded and no attempt having been made to amend the pleadings on the trial.

Appeal by the plaintiff from a judgment of the City Court of the city of New York entered in favor of the defendant upon the verdict of a jury and from an order denying plaintiff’s motion for a new trial.

Scott, Upson & Newcomb (Wm. Norse Scott, of counsel), for appellant.

Strouse & Strauss, for respondent.

Guy, J.

Plaintiff appeals from a judgment in favor of defendant entered herein upon the verdict of a jury, and from an order denying plaintiff’s motion for a new trial.

Plaintiff sues upon two claims assigned to him, one the claim of a firm of attorneys in the state of Virginia for services rendered defendant, and the other a claim for disbursements alleged to have been made on behalf of defendant by her New York attorneys. It appears that the New York attorneys were originally employed by defendant to take the necessary steps for the bringing of an action in equity in the state of Virginia, and that defendant authorized them to employ Virginia attorneys on her behalf, promising to pay the fees of such Virginia attorneys; that, pursuant to such authorization, her New York attorneys *160did employ a Virginia firm, who brought an action in Virginia, and the evidence was entirely nncontradicted as to the rendition of services by them and the value thereof as established by expert evidence. It appears further that, subsequently to the employment of the firm of attorneys in Virginia by defendant’s authorized agents, she made a new agreement with her Hew York attorneys whereby it was agreed that they should be paid for their services one-half of the amount which might be recovered in the action brought in Virginia, and the agreement, which was introduced in evidence by the defendant, contained this additional provision: *“*I also agree to pay you promptly the amount of your disbursements in such suits. and proceedings, it being understood that any sums paid by me with your approval for fees of other attorneys or counsel in Virginia or elsewhere, shall be *charged*against or deducted from your said compensation.”

Plaintiff introduced in evidence also a letter written by defendant to the Virginia attorneys, after their employment by her Hew York attorneys, ratifying their employment and promising to pay their reasonable fees and disbursements.

Ho evidence was introduced by the defendant in contradiction of plaintiff’s evidence as to the claim for fees due the Virginia attorneys and plaintiff was, therefore, entitled to recover on this claim. Though the evidence as to value was undisputed, it being expert evidence only, the value of said fees was properly left to the jury, but their verdict in favor of the defendant on this claim was not merely against the weight of evidence but was unsupported by any' evidence.

As to the second claim assigned to plaintiff, the claim for disbursements made by the Hew York attorneys, evidence was erroneously admitted, over the objection and exception of plaintiff’s counsel, which it was claimed established payment of the disbursements in question. The answer was a general denial; payment was not pleaded; no attempt was made to amend the pleadings during the trial. It is elementary that the defense of payment must be pleaded (McKyring v. Bull, 16 N. Y. 297), and the ad*161mission of this evidence was reversible error. The evidence introduced, however, failed utterly to establish payment of the items set forth in the claim of defendant’s New York attorneys, but merely showed payments aggregating in amount less than the aggregate credits given defendant on the bill rendered her for disbursements by her New York attorneys.

.The judgment must be reversed and a new trial ordered, with costs to the appellant to abide the event.

Seabury and Bijur, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event. ‘