Jones v. Baldwin-Devine

172 A.D. 970, 156 N.Y.S. 1128

Opinion

The record shows that the jury did not consider the $250 paid the plaintiff at the time he was retained. Such retainer is to compensate pro tanto for services rendered and disbursements made. The finding of the referee that plaintiff was guilty of misconduct is an adjudication of that fact, and was properly received as evidence thereof upon the issue of misconduct raised by the answer. The verdict is, therefore, against the weight of evidence. While the order upon the referee’s report remains unreversed, the fact of misconduct may not again become an issuable fact. Judgment and order reversed and new trial granted, costs to abide the event. Thomas, Carr, Stapleton, Rich and Putnam, JJ., concurred.