While the ease presented a question for the jury (Cleveland v. Cromwell, 110 App. Div. 82), I think that the preponderance of the evidence supports the view that the defendant merely undertook, as the plaintiff’s friend, to extricate him from his difficulties by effecting a compromise ; that the defendant was employed, if at all, to do precisely what he did do, and that he was not expected to examine the indictment, to advise the plaintiff of his legal rights or to conduct his defense in case the effort to failed.
When the plaintiff was arrested he employed another lawyer, and after an examination before the committing magistrate he was held for the grand jury. An indictment was found against him on the 7th day of December, 1896, to which he pleaded not guilty. • Two or three days before his case was to be called for trial, in June, 1897, he was notified by the district attorney to appear. His lawyer required a fee of $250, which he could not pay. In that situation he went to the defendant, his personal and political friend, whose practice had theretofore been confined to admiralty law. I quote from the plaintiff’s testimony, respecting his first conversation with , the defendant, the following: “I said that I failed to see anything criminal in the matter, but still there might be some technical point which I did not understand. I stated that. the lawyer that I had before the Justice of the Peace wanted to. charge me $250 to defend me, and I thought that was too much. I said that if I had to spend that amount of money, or was to spend, that amount of money, I would prefer to give it back to Mr. Stanley, if by so doing it could settle the whole matter. I said that I had had his money in good faith, and that I preferred that he shoiild' have it back to spending it fighting'him in the law; that I did not know whether it was toó late for that or not, but that I felt he should know and understand the matter.’^ It was arranged that the plaintiff should see the complainant and effect a compromise, or,' if *239his effort failed, that he should bring the complainant to see the defendant. A compromise was effected by the payment of $60, of which the defendant and another of plaintiff’s friends each contributed $30, and it is undisputed that the defendant was never repaid said sum and that he never received anything whatever for his services. On the day when the case" was to be called for trial the plaintiff appeared in court without any witnesses and without the documentary evidence which he says he relied upon to establish his defense.
While the plaintiff does testify that he employed the defendant to defend him and that the defendant agreed to wait until he could pay him for his services, I think it is' plain that a,' defense, either on the law or on the facts, was not contemplated much less wanted by the plaintiff. Having satisfied the complainant, the plaintiff expected the defendant to persuade the district attorney and the court to dispose of the indictment without a trial, and he did not ex'pect him to examine the indictment to discover if there were ' flaws in it. At the stage in which the defendant was called into the case and in view of what he was expected to accomplish he had a ' right to take it for granted that the indictment had already been examined by the plaintiff’s lawyer. He persuaded the district attorney to accept a plea of guilty of the crime of petit larceny and the court to suspend sentence. I think it is plain that that is all the plaintiff even hoped he would be able to accomplish.
While there is evidence in the record which may tend to support a different view, it seems to me that the evidence so preponderates in support of the view hereinbefore indicated that it would be unjust to allow this verdict to stand, and I vote to set it aside as against the weight of evidence, and to grant a new trial upon the usual terms.
1Woodward, Jenks and Gatnor, JJ., concurred; Hooker, J., concurred in separate opinion, with whom Jenks, J., also concurred.