#### George Wilkinson, Doing Business Under the Name and Style of George Wilkinson & Company, Respondent, *v.*Sayre McLeod, Appellant.

(Supreme Court, Appellate Term, First Department,

April, 1913.)

Services — action for — contracts — judgments.

Evidence — receipt by plaintiff ad interim of an antagonistic retainer — admissibility of.

A contract to- pay an expert a *per diem*compensation to testify in regard to a financial report he had prepared is an entire contract, and he cannot recover for his services until he completes his testimony.

Where the hearing was adjourned before the cross-examination of the expert was completed and he refuses to attend subsequent hearings unless he is paid his charges to date, and his attendance was compelled by subpoena, a judgment in his favor in an action for services on the first examination will be reversed.

Evidence of the receipt by plaintiff *ad interim*of an antagonistic retainer was material and admissible though not pleaded.

Appeal by the defendant from a' judgment of the Municipal Court of the city of New York, borough of Manhattan, first district, rendered in favor of the plaintiff.

Warren McConihe, for appellant.

Barnett *&*Jablow, for respondent.

Lehman, J.

The plaintiff was engaged to testify as an expert witness in regard to a financial report which he had prepared. It was agreed that he should receive for his services the sum of fifty dollars per day. His direct examination was completed, hut before his cross-examination was completed the hearing was adjourned. *221The plaintiff refused to attend the subsequent examination unless he was paid his charges to date, and the defendant was obliged to subpoena him to testify at the subsequent examination. The defendant also claims that in the interim plaintiff accepted another retainer antagonistic to his interests. Nevertheless the plaintiff has recovered judgment for the first examination.

In my opinion this judgment was erroneous. The contract was not a hiring at will, for though the compensation was arranged *per diem*it contemplated a distinct piece of work, viz., the preparation and giving of testimony. It was not a severable contract by the terms of which the agreed price for the services became payable each day because by its nature the contract was entire. The defendant could obtain no benefit from his services unless he fully completed his testimony. If the plaintiff refused to appear for cross-examination then his testimony could be stricken out on motion. Where the benefit sought is entire the contract will ordinarily be interpreted as an entire contract. Walsh v. New York & K. Co., 88 App. Div. 477. The plaintiff claims, however, that the contract is in any event complied with by his appearance and completion of the testimony though under subpoena. The plaintiff is, however, not entitled to a recovery if he abandoned the contract and appeared thereafter solely under compulsion of law. Upon this point evidence of the receipt of an antagonistic retainer would in my opinion be material even though not pleaded.

Judgment should be reversed and a new trial ordered, with costs to appellant to abide the event.

Gtebabd and Delany, JJ., concur.

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