#### FULLER v. TOLMAN.

(Supreme Court, General Term, Fourth Department.

December 26, 1895.)

L, Appeal—Review—Weight of Evidence.

The finding of a referee on conflicting evidence will not be disturbed on appeal because the appellate court, from the evidence, might have found differently.

3. Expert Testimony—Hypothetical Questions.

In an action for attorney’s services, where defendant agreed that a hypothetical question as to the value of the services might be asked before all the evidence relating to the facts stated on the question had been received, he cannot object to the question because the value of the property recovered by plaintiff for defendant in the suit in which the services were rendered was fixed by the question at a larger amount than that found by the referee.

Appeal from judgment on report of referee.

Action by Truman K. Fuller against Margaret Tolman for the value of professional services. A judgment was rendered in favor of plaintiff, and defendant appeals.

Affirmed.

Henry B. Tolman, the defendant’s husband, died on the 12th of December, 1889, leaving a last will and testament, whereby he devised and bequeathed all his property, both real and personal, to her, and nominated her as executrix of the will. At the time of his death he was owner of real estate of about 200 acres of a farm situated in the town of Lafayette, upon which he had spent the most of his life, and about 4.16 acres of land in the city of Syracuse. The referee finds the fair market value of the real estate, at the time/of the decease, was $13,500; and he also finds that there was about $200 in value of personal property, and debts amounting to about $2,500 against the estate. He also found that the plaintiff is an attorney and counselor, and has been engaged in the practice of his profession for 25 years in the county of Onondaga, and that on the 16th of December, 1889, a petition was presented in behalf of the *640defendant to the surrogate of Onondaga county for the probate of her husband’s will. Through James W. Tolman, a brother of the deceased, she employed the plaintiff to attend to the procuring of the probate of the will. On the return day of the citation a son of the deceased appeared with counsel., and filed objections to the probate of the will, in substance, as follows: “(1) That the paper presented was not the will of the deceased, and that its execution was not his free and voluntary act. (2) That the will was procured to be executed through undue influence. (8) That the will was not subscribed, published, and executed according to the statute. (4) That the paper was invalid as a will. (5) That the execution was procured by fraud, deceit, and undue influence on the part of the devisee named in the will.’’ Evidence was taken under the petition and objections, and the will was admitted to probate by a decree of the surrogate. The referee finds: “The plaintiff was necessarily in the surrogate’s court during the pendency of said proceedings, engaged in the case, on seven different days, but all of the time of those days was not actually spent in court on said matter.” The referee also found: “Before the said will had been admitted to probate, and on April 1, 1890, the said contestant commenced an action in the supreme court for the purpose of determining the validity of said will, alleging substantially the same grounds as were contained in the objections filed in surrogate’s court, making the said widow and the next of kin parties defendant.” The appellant here retained the plaintiff here to defend the action, and he drew and served her answer to the complaint, and the issues involved in the action were settled at a special term September 8, 1890, and the cause was on the circuit calendar for October 6, 1890, and when it was reached it was moved for trial. “No one appearing for plaintiff therein, the complaint was dismissed, and a judgment of dismissal and for costs was entered.” The referee finds, viz.: “The plaintiff herein prepared comprehensive and exhaustive briefs upon the questions involved, in both surrogate’s court and the supreme court, and made careful preparation for trial in each court, and was ready for trial when the case was reached. The plaintiff devoted 10 days in court and 45 days out of court to the said causes. The said several days in court were not wholly given to that work, but were set apart for that purpose by the plaintiff, and some part of each day given to it. The result of the litigation was favorable to the devisee in the will, this defendant, and the value of plaintiff’s services in the said matters alleged in the complaint is $1,250.” He also finds that a bill was rendered by the plaintiff, about the 16th of December, 1890, to the defendant, and that about the 2d of April, 1891, the plaintiff received through the mail a check of James W. Tolman for $300 “for Margaret Tolman.” The check was acknowledged the same day, and a statement was made by the plaintiff “that he would not accept $300 for his bill.” In April, 1891, the-plaintiff sent another bill to the defendant, which is set out in the complaint, amounting to $1,900, giving credit for $300, leaving a balance of $1,600. No-response was made to that bill, and this action was brought on August 5, 1892. The referee stated, as conclusion of law, that the plaintiff is entitled to recover “the value of his services rendered, to wit, $1,250, less the sum of' $300 paid on the account, leaving the sum of $950, with interest thereon from April 12, 1891,” and he stated the interest to be $209.50, and awarded a judgment for $1,159.50, with costs.

Argued before HARDIN, P. J., and MERWIN and PARKER, JJ.. Wilson, Kellogg & Wells, for appellant.

Fuller & G-len, for respondent.

HARDIN, P. J.

Upon looking into the evidence we are satisfied that it sustains the finding of fact, made by the referee, to the effect that the plaintiff devoted 10 days in court and 45 days out of court in the service of the defendant, and that there is evidence fully sustaining the finding of the referee that the value of the services rendered by the plaintiff for the defendant was $1,250. Recognizing that this, court has the power to review the evidence, and to interfere with a. *641finding of fact made by a referee, as stated in Farren v. McDonnell, 74 Hun, 176, 26 N. Y. Supp. 619, and Baird v. Mayor, etc., of New York, 96 N. Y. 576, we have carefully considered the evidence in the light of those authorities, and have reached the conclusion that we are not at liberty to say that the findings are against the weight of' evidence, or that the proofs given at the trial clearly preponderated in favor of a different result from that stated by the referee. Therefore, we may not disturb his findings’ of fact. On the contrary, we-must accept the same as a fair solution of the conflict found in the-evidence which was delivered before him. Van Epps v. Harns, 88 Hun, 229, 34 N. Y. Supp. 337. The witnesses that were called to-speak of the value of the real estate left by the deceased differ very widely in their estimates of its value, and it seems the referee has; accepted the medium valuations given by the witnesses, indicating that he did not believe the extreme value put upon it by some of the-witnesses for the plaintiff, nor the meager value put upon it by some of the witnesses for the defendant.

In Randall v. Packard, 142 N. Y. 47, 36 N. E. 823, it was stated that several circumstances must enter into the computation or estimate of the value of the services of an attorney and counsel, and among them the amount involved, pecuniary ability of the client, and that an attorney “deserves compensation according to the reasonable worth of his services.” And it was added:

> “Of that the jury are the sole judges, and, to arrive at their value, they may consider the nature of the services rendered, the standing of the attorney in his profession for learning, skill, and proficiency, the amount involved, and the importance to his client of the result”

And in the course of the opinion from which we have already quoted it was said:

> “Whatever our opinion might still be as to the amount awarded by the jury,, upon the evidence before them, we are concluded from any expression by their verdict, and if there was no error committed upon the trial, the judgment: must stand.”

In the case in hand we are constrained to say that, whatever our • opinion might be, upon reading all the evidence found in the appeal. book, as to the value of the services rendered by the plaintiff, and the ■ amount of compensation which he justly should receive therefor,, the action of the referee forecloses our interference as to the amount: of the award made to the plaintiff. There was quite an extensive ■ conflict in the evidence, and it was eminently within the province off the referee to determine what credibility should be given to each-witness speaking upon the subjects embraced in the trial, and to-award such credibility to one set of witnesses or another set of witnesses; and having faithfully, as we assume, performed the functions of a referee, we are called upon to accept his conclusions uponx the whole body of the evidence presented to him relating to the question of the value of the services rendered by the respondent for the appellant.

In Garfield v. Kirk, 65 Barb. 464, discussion took place over the measure of the value of an attorney’s services, and in speaking, of the ■ proof to be given thereof Mullin, P. J., said:

> *642“It is enough for him to prove, in general terms, the proceedings in the ■cause, the time occupied in the performance of any part of the services, by which their value was enhanced, and the value of the whole, or in detail, as he may elect.”

Apparently that rule was fairly observed in the trial before the learned referee.

2. It is claimed in behalf of the appellant that an error was committed in allowing witnesses to answer hypothetical questions which were propounded to them. It seems that, after the plaintiff had given some evidence as to the general features of the case, and as to the general circumstances attending the services which he hadrendered, and after he had stated as a witness that the services which he had rendered “were actually worth $2,500, but that is more than I [he] charged them in my [his] bill. They were easily worth $1,900.50. That is the amount of the bill I presented,”—and after he had caused to be produced certain letters which had passed between him and the defendant, his direct examination was suspended “to allow a hypothetical question to be propounded to expert witnesses.” Thereupon Mr. Andrews was called as a witness in behalf of the plaintiff, and stated that he was acquainted with the value of legal services, and then there was propounded to him, in behalf of the plaintiff, a hypothetical question, which had been prepared with considerable care, and evidently intending to embrace the facts which were not yet fully disclosed, but were to be disclosed by the extent of the evidence to be given by the plaintiff before resting. The hypothetical question covers over 10 pages of the printed appeal book, and while it was .being delivered to the witness, apparently, the plaintiff handed a brief to the witness, accompanied with a statement that “the brief to which I have alluded was much more voluminous than the brief which I hand to the witness.” At the close of the leading question, the examining counsel observed: “Assuming the above facts to be true, what, Mr. Andrews, do you say the services of the plaintiff were worth, in the entire pro-needing and litigation?” Thereupon the defendant took numerous ■objections to the question, and in response thereto the counsel for the plaintiff alluded to an agreement, apparently, that had been made between the counsel in respect to the time in which the question should be propounded. In response thereto the appellant’s counsel observed, “I make this for the purpose of getting it upon the record,”-—apparently referring to the objection that he had stated. In response thereto the referee observed, “What the counsel means, •and as I understand, it was arranged before dinner that Mr. Fuller’s testimony would be suspended to allow the hypothetical question to be propounded to the expert witnesses, and that their cross-examination be postponed until counsel has an opportunity to cross-examine Mr. Fuller.” Some further remark was made by the counsel for the defendant, and then the referee observed: “That is the arrangement between counsel. Of course, the referee is satisfied,”—and apparently ruled that the question might be answered, and the defendant took an exception. Thereupon the question was, to some extent, modified by the counsel for the plaintiff, particularly as to *643the number of acres of land, and the assumption was made that the property was worth from $20,000 to $27,000. Then the witness was asked, ‘‘What do you say for such services?” The answer given by Mr. Andrews was as follows: “I should think $2,500 would be a fair compensation.” He was then extensively cross-examined, and thereafter the plaintiff returned to the stand and gave further evidence in detail, and was cross-examined at great length, and thereafter Mr. Hunt was called, and the hypothetical question was repeated to him, and against an objection thereto, and an exception taken by the defendant, the witness stated, in answer to the question, that in his opinion the services were worth $2,500. He was extensively examined and cross-examined, and thereupon the plaintiff was recalled, and gave further evidence in respect to the circumstances attending the services, and was further cross-examined with great particularity. Subsequently Mr. Hancock was called as a witness to testify as to the value of the plaintiff’s services, and a hypothetical question, similar to the one propounded to Mr. Andrews, was asked of the witness, and no objection seems to have been taken to the question as propounded to him. ■ His answer was, “I should say that the value of the plaintiff’s services were, for the entire litigation, $2,000.” Subsequently Mr. Hoyt was called as an expert, and after the hypothetical question was put to him, it was modified in some slight respects, and it seems that the brief that had been prepared was put into the hands of the witness. The counsel for the defendant objected to the question-in general terms, but did not specify in any particuar respect wherein the question was erroneous. The objections made by the defendant were overruled, and exception taken, and the witness answered: “Assuming the facts stated in that question to be true, I should say the services were worth $2,500.” Subsequently Mr. Ceylon H. Lewis was examined^ and answered the hypothetical question, against the defendant’s objection and exception, and estimated the services at $2,300. Mr. Louis Marshall was called, and the hypothetical question was read to him, and his estimation of the value of the services was $2,000. And thereafter Mr. M. M. Waters, who had acted as counsel in the surrogate’s court for the appellant, was called, and the hypothetical question was propounded to him, and after objections thereto were overruled, and an exception taken, he said:

> “Assuming all the facts detailed in the question, my judgment is that the charges of the attorney for those services, exclusive of the counsel fee, should be worth $1,000, and upon the subject of counsel fee it seems to me that is a case—the question assumes a case—which would entitle the attorney to a counsel fee of probably $500. All this is assuming that the facts are as I have stated. I will base my opinion on the facts stated in the question.” •

Giving effect to the agreement that was made by the counsel in the early stage of the trial, that the hypothetical question might be propounded before all the evidence was given which related to the details embraced in the question, we are of the opinion that no error was committed in allowing the witnesses to answer the hypothetical question. Evidently, the counsel attempted to keep within the rule relating to hypothetical questions, to wit, that such questions *644must be based upon proofs in the case, and must not go outside of the facts as to which some evidence has been given, and which could be assumed as a possible truth. People v. Smiler, 125 N. Y. 717, 26 N. E. 312; Carpenter v. Blake, 2 Lans. 206; People v. Harris, 136 N. Y. 424, 33 N. E. 65; Bramble v. Hunt, 68 Hun, 204, 22 N. Y. Supp. 842; In re Mason, 60 Hun, 46, 14 N. Y. Supp. 434.

3. It is claimed an error was committed in allowing the question propounded to the plaintiff at folio 68, viz.: “Q. What did you learn- to be its value?” In answer to the question, the witness-stated that he learned, from the party who had charge of the matters for the plaintiff, and who came several times to him on behalf of her business, and who was subsequently called and testified as to-the bill, of his interviews with the plaintiff, and as to the litigation and the features thereof generally, and a motion was made to strikeout the evidence, and thereupon the counsel for the plaintiff stated: “I am willing, and ask that it be stricken out. The valuation that was given by James Tolman after the services were completed.” In response to that motion the referee said, “Granted.” We think, under the circumstances, the exception is unavailing to the appellant.

4. The referee seems to have been liberal in allowing cross-examination of the plaintiff, and we think he had the right to exercise-some discretion, and that he did not commit any error in the restriction which he placed upon the cross-examination.

Some other exceptions were taken during the trial, and are alluded to in the appellant’s points. They have received attention,, and it is not found that any of them present such an error as warrants us in interfering with the report of the referee. We think his conclusions upon the whole evidence, to wit, that the services of the plaintiff were worth $1,250, and that he has received $300 in payment thereon, and that he is entitled to recover the balance, with interest from the time stated in the report, should be sustained.

Judgment affirmed, with costs. All concur.