The plaintiff and defendant are brothers. The complaint alleges that in June, 1902, at the city of ¡New York, the plaintiff lent to the defendant the sum of $500 on condition that the same should be repaid in a short time, by which expression, “ a short time,” the parties meant and intended a period of about one month, and that within one year from such time the plaintiff demanded payment of said sum of $500 from the defendant, but that no part thereof has been paid, and the defendant is now justly indebted therefor to the plaintiff in the sum of $500, with interest, etc. The answer “ denies any knowledge or information sufficient to form a belief as to the allegations ” contained in the two paragraphs of the complaint briefly stated above, and a separate defense, alleging payment in full of the claim before the commencement of the action. The answer is verified by defendant’s attorney, who states that his ground for belief as to all matters not stated upon his knowledge are conversations had with defendant and letters, etc. This form of denial as to a personal transaction is not approved by the courts (Bogart v. City of New York, 128 App. Div. 139, 140, and authorities there cited), and it is doubtful if any issue was fairly raised as to the loaning of the money, the terms, and the fact that *861it had not been repaid, so that practically the only question presented by the pleadings was the affirmative defense that the payment had been made prior to the commencement of this action. Before the action was reached for trial the plaintiff: and defendant got together and settled the case without consideration, and on motion the plaintiff’s attorney was permitted to continue the action for the purpose of determining his right to a contingent fee of one-half of the recovery. There was no appeal from the order granting the right to continue the action, and no question appears to have been raised upon the trial as to the right of the attorney to continue the action, so that the interesting question discussed on appeal as to the right of parties to settle, notwithstanding the provisions of section 66 of the Code of Civil Procedure, does not appear to be involved. The question was tried and submitted to the jury upon the theory that the plaintiff’s attorney was bound to establish by a preponderance of evidence the cause of action alleged in the complaint, and while it must be conceded that the evidence is not as strong as might be desired, when the state of the pleadings is taken into consideration, we are not prepared to say that the verdict of the jury is not supported by the evidence. The result of the action is to determine that at the time of the commencement of the action there was a good claim existing against the defendant for the sum of $500, and the plaintiff’s attorney was to have one-lialf of any sum which was recovered in the action. It is not a proceeding to enforce the lien, but to determine the amount which is due under the agreement, and while it is extremely doubtful whether this was a case where the plaintiff’s attorney was entitled to the remedy which he sought, the defendant, by failing to appeal from the order permitting the action to be continued must be deemed to have waived the right to raise that question on appeal.
The judgment and order appealed from should be affirmed.
Hiesohberg, P. J., Jenks and Bure, JJ., concurred; Gaynok, J., read for reversal.