I think the plaintiff upon the evidence is entitled to a recovery against the defendant Florence A. Agnew. The ejectment action which was originally against her husband and herself, who were tenants by the entirety of the real property in dispute, was defended by the respondent Lynn successfully. He was unable to get pay for his services and it was necessary to bring an action to recover the same in which he succeeded. Naturally, Mrs. Agnew thereupon became estranged from her attorney and probably through the effort of her new-found counsel she sought to terminate the relations of attorney and client which had originally existed.
On November 6, 1915, notice was given by respondent of the pendency of the appeal from the judgment in the ejectment action, and its imminent argument before the Appellate Division, and requesting substitution of attorneys and signifying a willingness on his part to turn over all papers and exhibits in the action and to consent to the substitution of any attorney that might be agreeable to defendants upon payment in full for his services since the appeal had been taken, and further notifying Mrs. Agnew and her husband and Mrs. McCann, who had acquired title to the real property during the pendency of the litigation, that unless substitution was made he would deem it his duty to continue and to prosecute the appeal in their behalf. Thereupon, on November twelfth, Mrs. Agnew wrote the respondent disclaiming any previous employment or authorization for him to act as her attorney in the action and requesting that he stipulate a substitution of one Kiehel as her attorney. Four days later respondent wrote Mrs. Agnew saying that he would be glad to sign a stipulation substituting Kiehel and to turn over all papers to him upon payment of the sum of $100 as and for his charge for services performed since the service of the notice of appeal. In this letter of November sixteenth *311respondent also advised Mrs. Agnew that her husband, the defendant Simon H. Agnew, had recently requested respondent to continue as attorney upon the appeal and urged upon her the advisability of getting together with her husband and arranging the matter in some way, as the appeal would be argued soon. He further stated to her that if he continued in charge of the appeal he would charge her in addition to the sum of $100 above mentioned, the further sum of $150 for preparing the brief and arguing the appeal and that there would be an additional cost for the printing of the brief, which would not exceed $20. At the same time he wrote Mr. Agnew to the same effect. From that time on there was no further request for substitution on the part of Mrs. Agnew or her husband and no reply was made by either of them to plaintiff’s letter of November sixteenth. Not hearing from either defendant, respondent then proceeded to prepare his brief and argue his appeal in the Appellate Division and the judgment which he had theretofore obtained in favor of the defendants was affirmed.
Under these circumstances, it seems to me that the defendant Florence A. Agnew should be held hable for the value of respondent’s services. I think respondent’s letter of November sixteenth called for a reply. In addition to stating that he would require the payment of $100 for his services before he would turn over the papers, respondent’s letter contained the further information that her husband had employed him to continue as attorney on the appeal and stating to her that_ she should arrange matters with her husband at once, as the argument was pending and that in case respondent continued to represent them upon the appeal there would be an additional charge for services and for printing the brief above mentioned. She was not in possession of any of this information at the time she wrote the letter of November twelfth. I think the additional statements and information contained in respondent’s last letter called for a reply on Mrs. Agnew’s part, and from the evidence and what transpired subsequent to respondent’s last letter, it is apparent that Mrs. Agnew acquiesced in his continuing as her attorney and should be held liable to pay for his services.
I am also of the opinion that the judgment should be *312affirmed as to the defendant Sarah A. McCann.' It is true she was not a party to the original action, but during its pendency she.took title to the premises in dispute and at the time of the trial and of the appeal she was the party chiefly interested. In fact, she was the only party really interested, as she owned the premises, and if the appeal had been decided adversely to her she would have lost the real estate. It was a matter of concern to her that the finding of the trial court should be upheld. Notice was given to her along with the Agnews on November sixth; she was told of this appeal which was pending and in which she was vitally interested, and she was told that unless respondent heard from her to the contrary he would prosecute the appeal in the appellate court and would look to her with the other defendants for reimbursement for his services. Being apprised of the situation, it would have been gross negligence on her part had she allowed the matter to go by default and be unrepresented upon the appeal. Under these circumstances, I think she should be held liable to plaintiff for his services, and that, being vitally interested and receiving the benefits of respondent’s services under notification that those services were to be performed, respondent may look to her for reimbursement, and she cannot, after her rights have been protected and the appeal prosecuted to a successful termination, claim that she is not obligated to pay. I think there is enough to make an implied agreement on her part to pay the attorney for the services rendered in her behalf. It is all very well to say that she would have the right of action over against her grantors under the warranty in her deed in case the appeal was successful and the judgment of the trial court reversed. But these premises were hers. Presumably, she wanted to retain possession of them and the mere right of recovery back from the warrantors of the purchase price which she had paid, or indemnity by reason of losing the property deeded to her, might not recompense her for the loss of the property itself.
I do not think the fact that she was not an original party to the action was controlling, and that, as successor in interest to the Agnews, she should be held liable to at least share in the payment of respondent’s services. (Ross v. Bayer-Gardner-Himes Co., 123 App. Div. 404.)
*313Respondent testifies that he received no further word from Mrs. McCann until on or about the 9th of February, 1916, after he had prosecuted the appeal to a successful termination in her favor, when she wrote him a letter, Exhibit 2, disclaiming any liability for his services and also stating that notice had been served upon him in answer to his notice of November 6, 1915, to the effect that she had neither retained nor employed him. Respondent denies ever having received any such notice, and I think it was properly found upon the evidence that no such notice was given by the defendant McCann.
I think the judgment appealed from should be affirmed both as to the defendant Agnew and as to the defendant McCann.
Judgment reversed and complaint dismissed as to the defendant McCann, with costs, and a new trial granted as to the defendant Agnew, with costs to her to abide the event. Certain findings of fact as to the defendant McCann are disapproved and new findings made in place thereof.