I am unable to distinguish the case before us from that of Barney v. Fuller (133 N. Y. 605). The syllabus of that case so fully and yet succinctly states the rule in such cases that I use it here instead of attempting to set forth in my own language the rule, established by that case.
“ Where one party to an action seeks to recover for services and sets up a special agreement as to the sum to be paid therefor, which is controverted by the other, who also alleges a special agreement, and the testimony is conflicting upon this issue, it is proper for either party to prove the value of the services, both as bearing upon *226the issue raised and the probability that one or the other agreement was made, and because, in order to settle the controversy, the jury or. trial court may find'that the minds of the parties did not meet upon any special agreement.”
For the error, therefore, in rejecting evidence of the value of the services alleged to have been rendered by the defendant to the plaintiff, the judgment should be reversed and a new trial granted.
All concurred.
Judgment reversed, referee discharged and a new trial granted, costs to abide the event.