#### HENRY G. HARRISON, Respondent, *v.*MARY V. AYERS as Administratrix of ELEAZER AYERS, Deceased, Appellant.

*Recovery for services, not limited to the amount of a hill previously*rendered— *when the refusal of an executor to pay a claim is not unreasonable.*

The fact that an architect has presented a bill for a certain sum, as his charge for preparing plans and specifications for a building, does not prevent him from recovering, in an action subsequently brought, the actual value of such services, although it may exceed the amount specified in the bill previously rendered.

■When an architect has presented a bill for services in preparing plans and specifications, and subsequently, it not having been paid, he presents a claim against the estate of his employer for the same services, largely exceeding the amount of such bill, a refusal of the executor to pay the same is not unreasonable, and the estate should not be charged with the costs of an unsuccessful defence before a referee appointed under the statute.

What evidence as to the value of services rendered as arbitrator is insufficient to justify a recovery.

Appeal from a-judgment in favor of the plaintiff, entered upon the report of a referee upon a claim disputed and referred under the statute relating to claims against deceased persons, and from an order overruling exceptions to the report and allowing costs to the plaintiff.

*J. A. Shoudy,*for the appellant.

*C. Bainhridge Smith,*for the respondent.

*337Daniels, J.:

Tbe plaintiff presented an account to tbe defendant for services performed for tbe intestate during bis lifetime. These services consisted in part of making plans and specifications for a block of buildings wbicb tbe intestate was about to, and did afterwards erect. Tbe performance of tbe services, by drawing tbe plans and making the specifications, and their delivery to and receipt by tbe intestate, were proved by tbe witness Irving Harrison sufficiently so, certainly, to justify tbe referee in finding those facts to be established in tbe case. As this evidence was not controverted by any substantial proof given on the part of tbe defendant, tbe conclusion arrived at by tbe referroe was so far legally warranted.

Witnesses were examined for the purpose of showing tbe customary charges for services of that description. One of whom stated it to bo two and one-half per cent upon tbe cost of tbe structures. The other put tbe value oí tbe services at one and one-half per cent. This, like tbe other testimony, was not controverted by any controlling evidence, and accordingly tbe referee was justified in acting upon it, as presenting a proper measure of value for tbe purpose of compensating tbe plaintiff’s services. In bis conclusion be adopted the smaller percentage, and allowed tbe plaintiff to recover for those services tbe sum of $484.50, being one and one-half per cent upon tbe cost of tbe buildings. To that extent bis conclusion was fairly sustained by tbe evidence in tbe case.

It has been further claimed in support of tbe appeal that inasmuch as the plaintiff presented to tbe intestate an account for bis services, in wbicb be charged a gross sum of only $300, that this was conclusive against him on tbe trial of this cause. But that such is not tbe law is apparent from tbe decisions made in tbe cases of *Williams*v. *Glenny*(16 N. Y., 389), and *Stenton*v. *Jerome*(54 id., 480). Tbe former case is directly applicable to this contest, for tbe account there rendered was of a similar nature, but, notwithstanding that fact, tbe court held that tbe right to compensation was still open to be controlled by evidence concerning tbe actual value of the' services. As to this part of tbe case there was, therefore, no error in tbe determination of tbe referee.

Another item claimed was for services performed by tbe plain*338tiff for the intestate as an arbitrator in the settlement of a dispute existing between him and another person. The services were not of an extended nature, and but one witness was sworn upon the subject of their value. In his examination he stated that he could not say what they were worth, but he would say what he thought they were worth, and then added, “ I think they were worth $100.” Before that he had been interrogated upon the same subject, and asked whether he knew the reasonable value of the plaintiff’s services as arbitrator in that matter. This witness, who was the other arbitrator, in answer to the question, said that he could not tell. These answers were all the evidence given on this subject, and they were not sufficient to entitle the plaintiff to recover this sum of $100, for, taken together, they did not to any reasonable degree of certainty establish the fact that the value was the sum of $100. The referee, however, upon this evidence, allowed the plaintiff this sum of money, and in that he was not warranted by the testimony which had been given.

Upon the hearing of the motion to confirm the referee’s report, and for judgment at the Special Term, costs were allowed to the plaintiff in the action, and from that allowance an appeal has also been taken. ■ When the claim was presented to the defendant she consented to refer under the statute, so that no right to costs arose from a failure to comply with the provisions of the law upon that subject. And the only remaining ground upon which costs could be allowed was that the payment of the claims had been unreasonably resisted. *(Buckhout*v. *Hunt,*16 How., 407.) But, in view of the fact that the plaintiff himself, after all his services were performed, rendered an account to the intestate, charging, by way of compensation, the sum of $300 only, she had good reason for resisting the payment of any larger sum. Fairly and reasonably she could well infer from this account rendered, that no greater sum than that mentioned in it was due to the plaintiff for his services, and when an account was presented to her for more than double the amount which had been previously stated, it became her duty to the estate to contest it, for the purpose of requiring the *right to*recover the excess to be established by legal evidence. For that reason, under the provisions of the statute as they have been construed, she did not unrea* *339sonably resist the payment of tbe plaintiff’s claim, and could not properly be charged with the costs of the proceeding because of such resistance.

It has been objected that interest should not have been allowed Upon the amounts awarded by the referee. But as to that there seems to be no sound legal objection to the conclusion at which he arrived. The judgment, however, is erroneous as to the allowance of the $100 for the plaintiff’s services as arbitrator, and for the costs awarded in the action beyond those specifically provided for in references of this nature by the Code of Procedure. (See § 317.) And the judgment must accordingly be reversed and a new trial ordered, with costs to abide the event, unless the plaintiff, within twenty days after notice of this decision, stipulate to deduct $100, and interest recovered upon it, and the costs allowed to be inserted in the judgment by virtue of the order appealed from. In case of such stipulation, then the judgment will be. affirmed for the residue, without costs of this appeal to either party.

Beady and INGAlls, JJ., concurred.

Ordered accordingly.