The plaintiff is an attorney at law and was a member of the firm of Bushby & Berkeley. Mr. Bushby and the defendant Dusenberry were the executors named in the will of Mrs. Choate. The plaintiff claims that lie was retained by said executors as attorney to render services to them in and about the probating of said will, and in and about the administration of the estate of Mrs. Choate, and in and about matters connected therewith-; that he performed all the' terms and conditions to be performed under said contract of retainer, and at .the-special.instance and request of the. defendants rendered them services of the reasonable value of' $4,000, which, although duly demanded, has not been paid.
Upon the trial the plaintiff testified to Ms retainer and to the services rendered and to the value thereof. At the close of the. *243plaintiff’s testimony the record is as follows: “ The Court: The court dismisses the complaint on the ground that the cause of action is in Busliby and Berkeley, and not in the plaintiff alone. [Plaintiff’s counsel] : I take an exception.' The Court: The complaint is dismissed, the plaintiff excepts, and the exceptions are to be heard in the first instance at the Appellate Division. * * [Plaintiff’s counsel] : I except to your Honor’s dismissal, and I ask to go to the jury on the question of facts presented by the plaintiff as against both of the defendants and each of the defendants separately. [Motion denied. Exception.] ”,
We think this action of the learned trial court cannot be sustained. A prima facie case of employment of the plaintiff and services rendered by him under such' employment had been made out. A question of fact was presented which made the dismissal of the complaint, when that action was taken and upon the ground stated, improper.
In Parker v. Pay (155 N. Y. 383) the court said : “ There can be no doubt that an individual may employ his copartner to do work for him outside of and independent of the copartnership, and become personally liable therefor. The question is as to whether there was such an employment of the plaintiff in this case. .In determining that question, the fact that the parties were copartners properly entered into the consideration of the trial court, but it was not conclusive.”
So in this case one of the executors at least was not a partner of the plaintiff, and whatever • the relations of Busliby to the estate, and however he might have been prevented from himself receiving compensation for legal services rendered to it, the plaintiff would not as matter of law be prohibited from accepting the retainer testified to and receiving proper pay for services rendered thereunder.
The exceptions are sustained and motion for a new trial granted, with costs to the plaintiff to abide the event,
Ingraham, P. J., McLaughlin, Scott and. Dowling, JJ.? concurred.
Exceptions sustained, new trial ordered, costs to plaintiff to abide event. Settle order on notice.